CHAPTER 1

INTRODUCTION

The issue of post-divorce maintenance has always been a topic of great interest
to the public and to the lawyers, because it concerns key financial matter of the
Muslim divorcee. In earlier times these financial matters were mainly the subject
of informal family arrangements and rarely generated case law. Maintenance is
called nafaqah, which literally means that which a man spends over his family.
In law it means feeding, clothing and lodging. In common us it signifies food. The
Hedaya defines maintenance as all those things which are necessary to the
support for life. Maintenance may be classified into two groups, (i) maintenance
during continuation of a marriage and (ii) post- divorce maintenance. 1 On
maintenance during marriage, the Quran, Sum IV, Verse 34 states, men are the
protectors and maintainers of women, because God had given the one more
(strength) than the other, and because they support them from their means. 2 This
verse has been treated as the basis of Muslim law in this area. The general rule
is that a wife is entitled to maintenance, i.e. food, clothing and lodging from her
husband during the subsistence of a valid (sahih) marriage and during the period
of iddat. Wifes right to get maintenance from her husband during the subsistence
of a valid marriage is absolute. Her right remains unprejudiced even if she has
income or property of her own. Maulana Abul Kaiam Azad in his Taijumatul
Quran, comments as follows:

1Nazmi, Dr. Mohammad, Mohammedan Law, 3 ed., (Allahabad. Ceniral Law Publication, 2005), L [Durrul-

Mukhtar (Dayals English Translation)], p. 316.

1
2
!bid

2
Quran takes occasion to re-emphasis that proper consideration should be
shown to the divorced woman in every circumstance. This repeated call for
consideration to woman was for no other reason than that her position deserved
due attention since she was comparatively weaker than man and her interests
needed to be properly safeguarded.3
Nasir says that maintenance is the lawful right of the wife under a valid
marriage contract on certain conditions.4 These conditions related in particular to
the contract of marriage itself and the wifes obedience and they involve spouses
above the age of puberty.5 Maintenance is the wifes right irrespective of her
means or her religion. But in certain circumstances the wife may be expected to
fall back on her own resources. Nasir shows that maintenance is deemed a debt
on the husband from the date of withholding it once it is due.6 Only on payment of
such debt is settled under the sharia law. The prophet preached in his last
sermon:
Show piety to women, you have taken them in trust of God and have made
lawful for you to enjoy by the word of God and it is your duty to provide for them
and cloth according to decent custom.7
Faayazur Rahman argues that Quran has asked the believers to give
something to their divorced wives, the quantum of maintenance being left for the
believers to decide. He also argues that there is no evidence that the prophet
divorced any of his wives irrevocably and denied post-divorce maintenance.8 As
the greatest ever champion of human rights, the Prophet could never take away
the rights of divorced woman. Maintenance of a wife during subsistence of a
marriage is a legal obligation of the husband in Islam. But the sharia provision of
maintenance of the wife from her husband is conditional. The maintenance is
only due to the wife if she is under a

3
Latif, Syed Abdul, Thrzumatul Quran, Id ed. Vol.2, (Delhi: Asia Publishing House, 1967), p. 109.
4
!bid
5
Doi, Abdur Rahrnan, The Islamic Law, ~d ed., (London: Ta Ha Publishers, 1984), pp. 207-208.
6
Latif, Syed Abdul, ibid,p. Ill.
7
lbid
8
Doi, Abdur Rahrnan, ibid p. 214.

3
valid marriage contract, if she allows her husband access or iamkin to her all
lawful times and if she obeys his lawful commands in the duration of marriage.9
When the wife is working against the husbands wishes she becomes a
rebellions or disobedient or Nashuza and is not entitled to maintenance from her
husband. A wife is Nashuza as held in the case of Ahmed All vs. Sabha Khatun,
if without a valid excuse she disobeys his reasonable orders, refuses to cohabit
in the house he has chosen, goes on hajj without his consent unless it is
obligatory for her to go; takes employment outside the house without his consent
or is imprisoned so as to be inaccessible to him. However she will not be a
disobedient if her acts are in reply for her husbands inability to accommodate her
in accordance to law or failure to pay prompt dower when demanded or when
she has broken the stipulations in the kabinnama or has acted with cruelty. The
non-hanafi schools are of the opinion that even if she stays at home she will not
be entitled to maintenance, if she refuses sexual intercourse.
Concerning socio-economic conditions, customs and traditions and individual
circumstances of the spouses the quantum of maintenance and the duration of it
have obviously become a debatable issue. The various schools have developed
different criteria to assess the extent of wifes entitlements. 12 All schools of
Islamic law agree that if both the husband and wife come from wealthy
backgrounds, the level of maintenance should be in accordance with their
standard of living, likewise, if both are from poor backgrounds, the level of
maintenance will reflect this position.
If, however, one party is from a poor background and other is from a wealthy
background, the schools have arrived at slightly different interpretations of the
level of the appropriate maintenance. The Maliki and Hanbali shools adopt the
view that the average and medium level should be maintained in all cases. The
Hanafi school
9
!bid
10
3 PLD, 1952, Dacca 385
11
Nazmi, Dr. Mohammad, ibi4 p. 318.
12
Doi, Abdur Rahman, ibid. p. 217.

4
adopts the same position when the husband is wealthy and the wife is poor.
When the wife is wealthy and the husband is poor, however, the Hanafi school
believes that it is unreal to look to an average position. This school adopts the
view that the husbands condition alone should be the guiding factor.3

Another problem is with the duration of maintenance. Is the husband is bound

to maintain his wife beyond the iddat period. On the other had the question may
put forward whether a wife will entitle maintenance from her husband beyond
iddat period after divorce? This essay is an endeavor to find out the answer of
this question. In this essay the general provision of maintenance with its historical
development has been mentioned. In addition the two remarkable decision of the
highest court in Bangladesh and Pakistan has been discussed to understand the
judicial position regarding the duration of post-divorce maintenance.4

5
 RESEARCH OBJECTIVES

1. To know the rights of a women after her divorce in detail.

2. To raise awareness among the Muslim women about their socio economic

conditions, customs & traditions

3. To discuss that what steps should be taken for the post divorce

maintenance.

4. To find out the way to ensure different facilities for Muslim women in the

concerned matter.

5. To recommend in the concerned matters.

6
 METHODOLOGY

Every work is done by a specified method. I have followed analytical method to

complete this research work. I have collected all the data from secondary

sources which include several books, journals, newspapers, Act and browsing

the net.

7
 CHAPTER 2

HISTORICAL DEVELOPMENT OF
THE LAW OF MAINTENANCE

2.1 The Law of Maintenance in British India

During the British period there was no provision in the Hanafi Code of Muslim law
enabling married Muslim to obtain a decree from the Court dissolving her
marriage in case the husband neglected to maintain her, makes her life
miserable by deserting or persistently maltreating her or certain other
circumstances.5 The absence of such a provision has entailed unspeakable
misery to innumerable Muslim women in British India where the Hanafi law was
dominant. The Hanafi jurists, however, have clearly laid down that in cases in
which the application of Hanafi law causes hardship, it is permissible to apply the
provisions of the Maliki, Shafi or Hanbali Law. This device to select and combine
various elements of different schools of law is known as Takhayyur or an
eclectic choice between parallel rules of the various schools of Islamic law. 6P~is
selective process of overcoming divergences was hardly followed. Even though
the Courts in British India were given powers before 1939 to apply the law of one
of the schools of Muslim law in a case in which the parties were followers of
different schools, on grounds of justice, equity and good conscience, the courts
were reluctant to apply the more liberal rules of Maliki law to parties following
other schools. This led to the passing of the Dissolution of Muslim

15
David pearl, Werner, Menski, Muslim Family Law, 1st ed., (London: Sweet and Maxwell, 1998), p-182,
16
Jamal Nasir, The Islamic Law of Personal Status, 2nd ed, (London: Graham & Truman, 1990), p-102.

8
Marriages Act of 1939. Acting on this principle on 17 March 1939 (Act of Vifi of
1939) came into being.47

The new Act was an attempt to reinstate liberal Muslim provisions which were not
contrary to Muslim law. Under section 2(u) of the Act a wife is entitled to the
dissolution of her marriage when her husband has failed to provide for her
maintenance for a period of two years. The entitlement of the wife to
maintenance depends on the principles of Muslim law. Tahir Mahmood has
explicitly described the circumstances in which the husband might have withheld
maintenance)48 In particular, if the wife is Nasuza or refractory, under Muslim law
she is not entitled to maintenance and so her marriage can not be dissolved on
the ground of the husbands failure to provide maintenance for a period of two
years. Further on,it has been held by the Courts that a wife who refuges to return
to her husband without sufilcient cause is not entitled to maintenance. The
rulings of the Courts were mutually contradictory as they were based on the fault
theory and contrarily the modem breakdown theory. The view that judicial
dissolution or faskh can be granted irrespective of the wifes faulty conduct has
been criticized by some scholars as it is not in consonance with the principles of
nasuza under Islamic law.49

2.2 The Law of Maintenance in Pakistan Period

In Pakistan period the statutory law regarding the issue was found under section
9 of the Muslim Family Laws Ordinance, 1961 (MFLO).The arbitration council
was given powers by the MFLO in the area of family law, i.e. a wifes claim of
maintenance. It was stated under section 9(1) of the MFLO that if any husband
fails to maintain his wife adequately, the wife may apply to the Arbitration Council,
who shall specify the amount which shall be paid as maintenance by the
husband. Appeal

17
Jamal Nasir The Status of Women under Islamic Law and wider Modern Islamic Legislation, (London:
Graham & Truman, 1990), p. 59.
18
Ibid
19
Jamal Nasir, ibid

9
was made to the Sub-divisional Officer under section 9(2) of MFLO within 30
days (under section 16 of the Muslim Family Law Rules, 1961) and his decision
was regarded as final. The Arbitration Council could issue a certificate specifying
the amount. There were no specified rules by which the quantum of maintenance
could be determined. If the amount of maintenance was not paid in due time, it
could be recovered under section 9(3) of MFLO as arrears of land revenue. Thus
section 9 of the MFLO provides that the Chairman of the Arbitration Council may
issue a certificate specifying the amount, which should be paid as maintenance
by the husband, only if the husband fails to maintain his wife adequately. In
Sardar Muhammad vs. Mst. Nasima,2 it was held that the word adequately
includes cases of total neglect or refusal. The judges in Pakistan seem to grant
allowances for a period prior to the time of making of application.2

2.3 The Law of Maintenance in Bangladesh Period

The law of maintenance in Bangladesh is a combination of codified law, local

traditions and the traditional Muslim law. In former East Pakistan the Sub-
divisional officer or the local administrative sphere had the right of revision. The
procedural development that has been made in Bangladesh period relating to the
law of maintenance is that the revision against the Arbitration Council is done by
the Assistant Judges Courts, i.e. the lowest tier of the judiciary under the Muslim
Family Laws (Amendment) Ordinance of 1985. This portrays that law is turning
towards judiciary than the executive for its implementation.
In the past there were two types of device available for redress in the cases of
maintenance. First, a person could have instituted a criminal suit in a Criminal
Court under section 488 of the Criminal Procedure Code, 1898. Secondly, a civil
suit might be instituted in the civil courts.

2019(1967) DLR (WP) 50.

Shahdeen Malik, Post Divorce Maintenance for Muslim Women in Pakistan and India~, Bangladesh

Journal of law, Vol.2 (1), (Dhaka: Bangladesh Institute of Law and International Affairs), pp.40-41.

10
 In Meher Nigar vs. Mojibur Rahman22,
The High Court Division of the Supreme Court held that jurisdiction of the
Magistrates to entertain application under section 488 of Criminal Procedure
Code has been ousted and maintenance is a matter of Family Court now. But
considering the legal provisions, facts and circumstances the Court further held
that the Family Courts Ordinance, 1985 have not taken away the power of the
Magistrates to order maintenance of wife and children until the judgment passed
in the case of Pochon

Rikssi Das vs. Khuku Rani Dasi and others23, in this case it was held that the
criminal courts cannot entertain maintenance cases any longer and that by the
Family Courts Ordinance, 1985 the jurisdiction of the criminal courts have been
ousted.24

22
47(1995) DLR~ 18.
23
50(1998) DLR,, 47.
24
Prof Dr. Taslima, Gender Equity and Economic Empowerment: Family Law and Women in
Bangladesh, 1st ed., (Dhaka: British Council, 2008), p. 74.

11
 CHAPTER 3

DURATION OF MAINTENANCE :
THE SAGA OF SHAH BANU

There is no controversy in Islamic law that it is the obligation of the husband to

maintain the wife. But, there is a considerable debate as to whether a Muslim
husband is under an obligation to maintain wife beyond the iddat period. Doi
observed that the responsibility of maintenance of the husband is not only when
she lives as a legal wile and towards his children of that wife but is important to
maintain her even in the event of divorce. There are four purposes of observing
iddat after divorce of a Muslim marriage. First, to allow the party to re-conciliate
and to give the divorcee a go by in the case of talaq- al- hassan and talaq- al-
ahsan, secondly to ensure whether the woman is carrying the offering of the
husband so that the legitimacy of the child remain beyond dispute, thirdly, to
prevent re-marriage of the woman during the period of iddat in order to not to
forestall reconciliation and fourthly, to make arrangement for the maintenance of
the woman during the period of iddat. Usually the iddat period is three
menstruation courses that are ninety days. In addition if the wife is pregnant it is
until the birth of the child and if the divorce is the result of the death of the
husband it is four months and ten days. A wife, after divorce need not observe
the iddat period if there no consummation takes place.25

The Supreme Court in India in the celebrated case of Shah Bano~ made the
beginning of the journey towards change. It allowed life long post divorce
maintenance for Muslim divorcees. The basic facts of this case were that the
husband, a senior advocate by profession, was married to the respondent wife in
1932.
25
Tahir Mahmood, The Muslim Law of lndia 1st ed., I (Allahabad: Central Law Agency, 1980), pp.98-100
26
Shah Bano Mohd. AhmedKhan, AIR, 1985, (SC) 945

12
 His professional income was about Rs. 60,000 per annum. Three sons and
two daughters were born to the marriage, which was never a happy one. The
husband took a second wife and in 1975 divorced Shah Bano, the first wife
and now an old lady. For two years he paid Shah Bano Begum maintenance of
Rs. 200 per month.
Then the payment of maintenance was stopped. She filed a petition for
maintenance in April 1978 claiming Rs. 500 per month under section 125 of
the Code of Criminal Procedure 1973 in the Court of Judicial Magistrate. As
the appellant was an advocate by profession and well versed in law, so he
played a trick to nullify the claim of Shah Bano. On November 6, 1978 the
appellant divorced the respondent by an irrevocable talaq. His defense to the
respondents petition for maintenance was that she had ceased to wife by
reason of the divorce made by him, that he was therefore under no obligation
to provide maintenance for her, that he had already paid maintenance to her at
the rate of Rs. 200 per month for about 2 years and that he had deposited a
sum of Rs. 3000 in the court by way of dower and maintenance during the
period of iddat. It speaks volumes for the legal position even of privileged
Muslim woman that the Magistrate awarded her Rs. 25 per month. The High
Court of Madhya Pradesh eventually awarded the ex-wife maintenance at the
rate of Rs. 179.20 per month and the husband appealed against that.27
A Supreme Court Bench of judges took the view that Bai Tahira and Fuziubi
were incorrectly decided and that the law was not clear. Therefore they
referred the matter to a bench of five judges, headed by the Chief Justice,
which dismissed the husbands appeal and confirmed the decision of the High
Court. The fact that these five judges were Hindus it becomes a political issue,
since the case involved an analysis of Muslim law. Chandrachud, the Chief
Justice then went on to examine the question whether there was in fact any
conflict between the Muslim personal law and the general law. This is a new
element in the case law which led to intense confrontation thereafter partly
because there were five Hindu judges interpreting the
27
A/A/Asaf Fyzee, Outlines of Muhanmadan law, 4th ed,/(New Dethi: N.M. Tripathi Private Limited, 1974),p. 172.

13
principles of Muslim law, in a case that would hit the pockets of many Muslim
men. Chandrachud C.J. stated:

Since the Muslim personal law which limits the husbands liability to provide for
the maintenance of the divorced wife to the period of iddat, does not contemplate
the situation envisaged by section 125 of the Code of Criminal Procedure 1973 it
would be wrong to hold that the Muslim husband, according to his personal law,
is not under an obligation to provide maintenance beyond the period of iddat, to
his divorced wife who is unable to maintain herself The true position is that, if the
divorced wife is able to maintain herself, the husbands liability to provide
maintenance for her ceases with the expiration of the period of iddat. If she is
unable to maintain herself, she is entitled to take recourse to section 125 of the
Code of 1973. So, there is no conflict between the provision of section 125 and
those of the Muslim personal law on the question of the Muslim husbands
obligation to provide maintenance for a divorced wife who is unable to maintain
herself.28
These statements were immediately backed by reference to relevant Quranic
verses (Sum 2, Verse 241 & 242) to the effect that for divorced women,
maintenance should be provided on a reasonable scale and that this was a duty
on the righteous Muslims. Having gone through various English traditions of
these Verses the Chief Justice concluded:
These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim
husband to make provision for or to provide maintenance to the divorced wife.
The contrary argument does less than justice to the teachings of the Quran.
The decision in the Shah Bano case led to riots, generated much concern among
certain sections of the Muslim community in different parts of India and deeply
divided the community.3 The result was that the Government of India had to
bring about an enactment called The Muslim Woman (Protection of Rights on
Divorce) Act, 1986 by which the said decision prima-facie was set aside.

28 29
Tahir Mahmood, ibid, pp.101-105. A. A Asif Fyzee, ibid. p. 173-174.
30
Shah Banu vs. Mohd. Ahmed khan, AIR, 1985, (SC) 945.

14
 The enactment was strongly opposed by womans rights groups. However,
according to certain authors, the procedure under this law has been disarmed
and substituted by another procedure offered to the woman.31 Although under
section 3, sub-sections 1 of the Act of 1986 ostensibly the entitlement of the
divorce seems limited. It contains loopholes which may be used to benefit Muslim
woman. It states that-

notwithstanding anything contained in any other law for the time being in force, a
divorced woman shall be entitled to a reasonable and fair provision and
maintenance within the period of iddat by her former husband. Sub-section 3 of
section 3 requires that the divorcee shall be paid a reasonable sum and fair
provision to take care of her without having regard to any time limit fixed i.e. for
the rest of her life. In All Vs Sufaira, 1988 [(2) K.L.T 94, Kerala Law times- it was
held that under section 3(IXa) of the Act of 1986 a divorced Muslim woman is not
only entitled to maintenance for the period of iddat from the former husband but
also to a reasonable and fair provision for the future 32

It seems therefore that the divorcee may be entitled to be reasonably and fairly
provided for without any time limit as to for how long such provision should
benefit her i.e. either for the rest of her life or at least until she can get remarried,
although the sum itself must be paid during the period of iddat. In India the high
courts of Kerala, Gujrat and Maharastra upheld this interpretation of section 3 of
the Act of 1986 while other had not (such as Orissa). This confusion was put to
rest in Danial Lat vs. Union of India. 33 This judgment affirmed the beneficial
interpretation adopted by the Bombay High Court and confirmed that the clause
reasonable and fair provision meant lifelong post-divorce maintenance to be
paid by the husband within the iddat period.TM So, the current legal position in
India is that a Muslim cx
31
Muslim Women Right to Maintenance in Bangladesh, - The Daily Star, January 30, 2005.
32
Report of the Commission on Marriage and Family Law, Gazette of Pakistan (extraordinary), June 20, I956,p 12-15.
33
7SCC,74O
34
Usman Khan Bahmani vs. Fathimunnessaa Begum, AIR 1990 Mad. 333. 1989 (2) MU 3441

15
husband is undoubtedly expected to maintain his wife during the iddat period and
in addition required to make reasonable provisions for his former wife for the
period beyond the iddat period to the best of his abilities.35

But the full bench of the Andhra Pradesh High Court in the case of Usman K/ian
Bahmani vs. Fathimunnessaa Begum,36 in this case has taken the contrary view
by holding that the husband is not liable to pay any maintenance beyond the
period of iddat. The Court observed: Section 3 starts with a non-obstante clause
reading notwithstanding anything contained in any other law for the time being in
force, a divorced woman shall be entitled to lay a claim for all those things
enumerated in clause (a) to (d) of subsection I thereof. It shows that a divorced
woman is entitled to a reasonable and fair provision during the iddat period.
There is nothing in the section which can be read to mean that the husband is
liable to make reasonable and fair provision and maintenance beyond the period
of iddat. The word within indicates two things that the liability of the husband to
make a reasonable and fair provision and maintenance is limited to the period of
iddat only. The primary question arising out of section 4 for consideration is that
the liability of the relatives or the Wakf Board, as the case may be, to pay
maintenance to the divorced woman arises only if the divorced woman is not
remarried or is unable to maintain herself after the iddat period. This clearly
shows that the husband is not liable to pay any maintenance beyond the period
of lddat.37

In Pakistani law, there has also been a continuing debate about maintenance
rights of divorced Muslim wives. The underlying socio-religious problems are
clearly the same but in Pakistani law a divorced wife is no longer a wife and thus
the catalytic element of Criminal law support to remain Muslim husbands of an
ancient duty was never activated. The issue itself was clearly identified by the
Commission
35
R. K. Agarwala, Hindu Law, 21st ed., (Allahabad Central Law Agency, 2005), pp. 155-156.
36
A!R 1990 Mad. 333. 1989 (2) MLJ 3441
37
Ibid

16
on Marriage and Family law. In the context of divorce reforms, the issue was
phrased as follows:

Should it be open to a Matrimonial and Family laws Court when approached to~y
clown that a husband shall pay maintenance to the divorced wife for life or till her
remarriage? The commission was of the opinion that such discretion should be
vested in the Matrimonial Court, and that a large number of middle aged woman
who are being divorced without rhyme or reason should not be thrown on the
street without a roof over their heads and without any means of sustaining
themselves and their children. Of course, it would be open to a Matrimonial Court
to refuse to sanction any maintenance if woman is at fault.38

38
Freeland Abbott, Islam and Pakistan, 1st ed., (New York: Cornell University Press, 1968), pp. 88-90.

17
 CHAPTER 4

POST DIVORCE MAINTENANCE

IN BANGLADESH

4.1 The Saga of Md. Hefzur Rakman vs Shamsun Nahar Begum

In the case of Md Hefzur Rahman vs. Shamsun Nahar Begum39 an attempt was
taken in Bangladesh to change the tradition. This has been the only case where
the burning issue of post-divorce maintenance received a detailed judicial
analysis and examination. Before we proceed further, here is a brief account of
the facts of the case.40

Md. Hefzur Rahman had married with Shamsun Nahar in March 1985. A dower
of Taka 50,001/- had been fixed and a son was born in December 1987 out of the
wedlock. In August 1988, the husband divorced the wife. Three months later, the
wife filed a suit for recovery of her dower and for maintenance for herself and the
child at Taka 2000/- per month. The Family Court directed the husband to pay
Taka 48000/ as the balance of the ma/zr, Taka 1000/- per month for maintenance
of the child and a sum of Taka 3000/- for the iddat period of 3 months. The
husband appealed against this decision to the Court of District Judge and
managed to have the maintenance payments reduced to Taka 600/- per months
each for the wife and the Son. The husband then filed a further appeal to have
the maintenance payments reduced still further. 41

39
51 DLR(1999)AD 186
40
Syed Ameer Ali, Muhammedan Law, Vol. 11 ,5th ed., (Allahabad. Central Law Agency, 1985), pp. 150-155.
41
51 DLR (1999)

18
4.2 Judgment
Mohammad Golarn Rabbani, J. delivering the judgment, stated that nobody
appeared to support a further reduction. He found that the lower courts had not
explained how the sums were arrived at, nor had any reasons been cited for the
reduction. Finding that the husband was a govt. servant in stable employment, he
decreed that the award of 11. 1000 each per month should be restored, criticizing
the district judge for his illegal action~)
The judge then immediately took up; suo moto, the question whether the
divorced wife could have claimed maintenance beyond the iddat period. Citing
the relevant quaranic passages, the Hedaya and other sources, he commented
that the Quran says that it is easy to understand, thus it prescribes a rule of literal
construction of its verses. This leads to a discussion of the role and scope of
zjtihad with reference to an old Privy Council case, Aga Mohammed Jaffer Bin
Nadim Koolsom Bee Bee,43 in which the judges had refused to interpret the
Quran. Mr.Rabbani, J. felt entitled to take a fresh look at the Quranic injunctions;
in fact he argued that under Art. 8 (IA) of the Constitution of Bangladesh he had a
positive obligation to do so. Further he cited a case from the Lahore High Court
to support the propositions that reading and understanding the Quran is a
privilege granted to every Muslim which can not be taken away from him by any
body, however highly placed or learned he may be to read and interpret Quran
and that interpretation must be in the light of the existing circumstances and the
changing need of the world.
Thus it was concluded not in very clear terms but very much in line with current
Bangladeshi trends of islamisation:
We, thus come to the conclusion that a civil court has jurisdiction to follow
the law as in the Quran disregarding any other law on the subject, if contrary
there to even though laid down by the earlier jurists or commentators may be of
great antiquity and high authority and though followed for a considerable period.
Under
42
Ibid
43
ILR, (1897)

19
the Hindu law clear proof of usage can outweigh the written text of law. But it is
not in the case of Islamic law. For it is an article of faith of Muslim that he should
follow without questioning what has been revealed in the Quran and
disobedience thereof is a sin~
Having taken another close look at Quran, Sura 11, Verse 241, Rabbani,
J. then changed with a stroke of his pen the law of Bangladesh on maintenance
for divorced wives:
Considering all the aspects we finally hold that a person after divorcing his
wife is bound to maintain her on a reasonable scale beyond the period of iddat
for an indefinite period that is to say till she losses the status of divorce by
remarrying another person.45
In this case the HCD observed that the word Mataoon- bil Maroof as
used in the Sura Baqara (Verse 241) means maintenance should be provided on
a reasonable scale. According the HCD these words as used in Sura Baqara are
to indicate the amount of maintenance, not to determine the time up to which the
husband is under obligation to pay maintenance. The court further revealed that
Verse 228 of Sum Baqara deals with iddat period while maintenance deals by
Verse 241 of the same Sura. Therefore, those two legal provisions are
independent of each other and consequently interpreted independently.~
There were two fundamental reasons behind the decision of the HCD.
First, literal construction, according to HCD, of the verses of the Quran which, as
universal rule, means that it is to be assumed that the words and phrases have
been used in a statute in their ordinary meaning and that every word in a statute
is to be given a meaning. Secondly, Quran (second Sum Baqara, verse 121),
according to HCD, directs continuous study of the same which is in conformity
with the dynamic,

44
Obaidul Huq Chowdhury, The Hand Book of Muslim Fami1~y Laws, 6~ ed., (Dhaka: Dhaka
Law Reports, 2005).
45
1bid
46
Ibid

20
progressive and universal character of Islam.33 This literal study of Quran is,
according to HCD, discouraged by a section of Muslims and insisted the readers
on any of the interpretation given by the recognized early scholars. This section
of Muslims, according to HCD, go further saying that the door of interpreting
Quran is closed which is indirectly supported by Privy Council in Aga Mahomed
case.47 The Privy Council in this case observed that: it would be wrong to the
court on a point of this kind to attempt to put their own construction on the Koran
in opposition to the express ruling of commentators of such great antiquity and
high authority.

However the HCD rejected such type of arguments in order to refrain from
interpreling Quran contrary to the established principle of Muslim jurist on three
grounds. First, the learned judges in the Privy Council were non-Muslim and they
might be anxious to interpret an issue in independently disregarding the Muslim
jurists. Secondly, absolute trust and faith in the Almighty Allah shall be the basis
of all action being the fundamental principle of state policy of the Constitution of
Bangladesh, indicates that Qurarnc injunctions shall have to be followed strictly
and without any deviation. Finally, verse 121 of the second Sum Baqara directs
continuous study of the Quran in conformity with the dynamic, progress and
universal character of Islam.49

The HCD judges then held that a civil court has jurisdiction to follow the
law as in the Quran disregarding any other law on the subject, if contrary thereto
even though laid down by the earlier jurists or commentators may be of great
antiquity and high authority and though followed for a considerable time.36 They
got authority for their deviation from earliest principle established by Privy
Council from decision of the Lahore High Court in Rashida Begurn case50 where it
was observed that:
47
Aga Mahomed Jaffer Bindanim vs. Koolsoom Beebee and others, 1LR, 25, Cal 9
48
Syed Ameer All, ibid, pp. 159-163.
49
Ibid
50
Msti Rashida Begum vs. Shan Din & others, PU) (1960), Lah: 1142

21
Thus it is quite clear that reading and understanding the Quran is not the
privilege or the right of one individual or two. It is revealed in easy and
understandable language ~o that all Muslims if they try may be able to
understand and act upon it. It is thus a privilege granted to every Muslim which
cannot be taken away from him by

iybody, however highly placed or learned he may be to read and interpret the
Quran. In understanding the Quran one can derive valuable assistance from the
commentaries written by different learned people but then that is all. Those
commentaries cannot be the last word on the subject if the interpretation of Holy
Quran by the commentators who lived thirteen or twelve hundred years ago is
considered as the last word on the subject, the then whole Islamic society will be
shut up in an iron cage and not allowed to develop along with time.5

It is interesting to mention here that the HCD no where mentioned the

much talked Shah Bano case of Indian jurisdiction decided just ten years before.
It does not put forward any social welfare doctrine to introduce new rule on
maintenance either.

The learned judges did not care for any support for their decision; they just read
the verse 241 and interpreted it which is termed by the Appellate Division later
first wil unique. The judgment and the way it was given is termed as
Islamization of Bangladeshi law. It is also termed as a self protection
mechanism for welfare state which does not have the money to support the
indigent victim as broken marriages.52

51
Syed Amir ali, ibid, pp. 165-67.
52
Ibid

22
 CHAPTER 5

RE-INTRODUCTION OF THE THEOLOGICAL

INTERPRETATION

5.1 Role of Higher Judiciary

The decision of the High Court Division was challenged in the Appellate Division
on two grounds- (a) The decision of the High Court division was against general
or secular law. That is in suo motu, according to the petitioner, the court cannot
take any position and (b) the high courts decision was against the personal law,
i.e. Muslim sharia law of the petitioner.53
The first attack of the Appellate Division is that the High Court Division did
not mention any instances in favor of the decision during last 14 hundred years in
the Muslim world. Nor it got support from any book on Muslim Law. Appellate
Division of the Supreme Court revealed:
Indeed this has been the Muslim Law since the days of Prophet
Muhammad (Allahs peace be upon him) and the respondents and the
interveners supporting them have not been able to show one instance from the
early days of Islam till the date of the impugned judgment, where the view taken
by the learned judges as to maintenance has during the last fourteen hundred
years.TM
The second argument put forward by the Appellate Division is that
meaning of the word mataa as used in the Verse 241 of the Sum Baqara.
Abdullah Yusuf upon whose translation the HCD relied on,, translated it as
maintenance. It was held by the Appellate Division of the Supreme Court that
whatever be the meaning of the

53
Prof. Dr. Tashma Monsoor, Judiciary and Gender on Trial: Reported and Unreported Decisions of Family Courts,
(Dhaka: The British Council).
54
Prof. Dr. Taslima Monsoor, From Patriarchy to Gender Equity: Family Law and Its Impact on Women in Bangladesh, 1St

23
ed., (Dhaka: The University Press Limited, 1999), pp. 180-185.

24
word Matta it is certainly not maintenance as can be claimed within the meaning
of Maintenance wider the Family Couits Ordinance, 1985 section 5(d). The court
held r~ the word Mataa in the quranic verse II: 241 which modernists take for
post Mxce maintenance, means consolatory gift and as such has never been
enforceable.43 rr~ Court noticed that the interpretation of the particular Ayat 241
is difficult and hazardous because of the meanings attributed to the various
words used therein. For example. the all important word Mataa has been
understood and interpreted in various senses. 55
Appellate Division has revealed that this translation of the Holy Quran by
Abdullah Yusuf Ali has been revised and corrected by presidency of Islamic
Researchers under a Royal Decree issued by the custodian of the two Holy
Mosques.From the preface of the said revised translation of the Holy Quran the
meaning of the wordMataaas occurring inAyats no.. 236and 241
isfoundtobethesamethatisa suitable gift. Evidently, the High Court Division had
not had the benefit of looking into the revised meaning of Mataa which is different
from the original translation done by Abdullah YusufAli.44 Relied on an article
titled Divorced Muslim Women in India by Lucy Caroll where it has been pointed
out that the word as used to mean maintenance is Naqfa the Appellate Division
firmly decided that the word Mataa does not mean maintenance anyway.
Mustafa Kamal J. analysed the word Mataa stating that the prophet(s), the
Shahabis of the Prophet, the Tabeyis, the Imams of all the four schools of
thought in Islam, and the recognized commentators from the 3~ century Hijri up
to the 15th century Ilijri have never deviated from the following proposition with
regard to56
(a). Mataa is a parting gift to divorced women as a comfort and solace for the
trauma they suffer from divorce, (b) As it is a presentation denoting Godliness,
courtesy,

55
Ibid
56
Ibid

25
equity, handsomeness and reasonableness, no limit has been fixed in its
payment It has been left to the pleasure and means of the husband, (c) Since
Mataa is a presentation, the future life of the wife or her post divorce financial
position has not been made a subject matter of consideration while giving Mataa,
(d) Mataa is a temporary gift and is not a matter to be given repeatedly or at
intervals (e) Mataa has never been judicially enforceable, but no one can compel
another to make a gift through a process of law.57

Mataa has been translated as consolatory gift or compensation of indemnity. It is

basically different from regular maintenance of the divorce. The Court held:

The respondent and her supporters could only show that in different
Muslim countries legislative provision has been made in accordance with which
Mataa or recompense has been provided to divorced women under certain
circumstances even after the period of iddat. They have, however, not been able
to show one instance from any jurisdiction where Ayat 241 has been interpreted
to mean that maintenance is to be provided till remarriage.58

The Appellate Division also reveals that HCD did not cite any reason
whatsoever completely ignoring all the lessons and learning of fourteen hundred
years. It is to be mention here that the HCD relied on a Lahore case59 where the
Lahore High Court have observed that if the interpretation of the Holy Quran by
the commentators who lived thirteen or twelve hundred years ago is considered
as the last word on the subject, then the whole Islamic world will be shut up in an
iron cage. On the contrary the Appellate Division terms their way of (attitude)
interpretation is legally wrong as well as morally despicable. It is mention worthy
that the Appellate Division refuted the interpretation of the High Court Division

57
Dr. Mohd. Shabber, Muslim Personal Law and Judiciary, 3~ etL, (Allahabad: The Law Book Company, 1988), pp. 85-89.
58
1bid
59
Mst. Rashida Begum vs Shahan Din & others, PLD (1960), Lab, 1142

26
emotionally rather than providing with good interpretation which could have been
the antithesis of the HCD. For example, the Appellate Division revealed that:
Quran is not a legal draftsmans work, who is guided by Mr. Maxwells
rules of interpretation. It was revealed by the creator of all Maxwells and the
person to whom it was reveal is the Maxwell of that sacred book.6
The Appellate Division also observed that: The language of the Quran is easy to
understand for a person who has good command over the Arabic language. It is
not necessarily so for a person who is reading Quran in a different language
Quran should not be interrelated with man made techniques. The verse should
not be understood in isolation and with little knowledge. Rather it should be
interpreted or understood with the teaching and practices of the prophet and
subsequently by enunciation of the Islamic jurists and scholars.
By using these words the Appellate Division categorically termed the translation
of Hamilton and Bailhie more authentic but it does not mention anything about
teaching and practice of Prophet regarding maintenance.
The authentic argument puts forward by the Appellate Division of the
Supreme Court is that the word Mataa has been translated by Yusuf All as a gift
while translating verse 236 of Sum Baqara and therefore there will be no different
meanings of the same word. In addition citing interpretation of Verse No. 6 of
Sum at Talaq by Yusuf Mi the Appellate Division revealed that it is apparent that
the maintenance has been related to the iddat period. It refuted the interpretation
of the High Court Division on two grounds; (a) it is conflicting with the
interpretation of the Verse no. 6 of the Sum at Talaq and (b) the general rule of
interpretation that document should read as a whole was not followed by the
HCD while interpreting Verse 241 of Sum Baqara. Appellate Division of the
Supreme Court also revealed that the word Maiaa has been made a subject of
legislation of the Muslim countries, like Malayasia, Egypt, Jordan, Syria, Morocco
and Lebanon which means a gift

60
Dr. Mohd. Shabber, ibid

27
payable where divorce has been made arbitrarily. Further the Appellate Division
observes that Mataa is never considered as maintenance but something as
compensation for arbitrary divorce. For example, a woman who has been
divorced arbitrarily by the husband may be awarded by way of Mataa; i.e.
maintenance of one year in Jordan, maintenance of two years in Egypt and
maintenance of three years in Syria. The wife also may be liable to pay Mataa
as the Appellate Division termed it very fair and highly equitable.6
Since the HCD did not cite any authority, nor it took recourse to any
precedent behind their interpretation of the word Mataa except the translation of
Abdullah Yusuf All, the Appellate Division, without any hesitation, rejected it.
The Appellate Division also observed that in respect of a divorce without
consummation and without fixation of dower, and divorce without consummation
and with fixation of dower the wile need not observe any iddat. These divorces
will take effect immediately after the pronouncement of divorce and in the first
cases all that is due to the wile is a suitable gift of a reasonable amount
according to the means of the husband. This gift, according to Appellate Division,
is called mataaunbill-maaruf.62
It is mention worthy that the Appellate Division does not mention who or under
what authority the meaning of the word Maata having translated by Abdullah
Yusuf All has been changed. It will not be a difficult task to find out a single word
which is used in the different places of a book or document to mean different
things. Moreover, the Appellate Division categorically says that the Arabic word
as maintenance is the word Naqfa which means expense, cost, charge and
which is different from the meaning of the word Maata. In addition it provides
with some meanings of the word Maata; i.e. enjoyment, pleasure, necessities of
life, possession, property, goods etc. which is, broadly speaking, same as the
meaning of Naqfa The highest court also revealed that the meaning of the word
Maata

61
Prof. Dr. Tashma Monsoor, ibid
62
Ibid

28
provided by the High Court Division is against the established Jima for the last
fourteen hundred years and there is no reason cited by the High Court Division
for which the established jjma should be broken Justice Mustafa Kamal
repudiated the wrongful method of interpretation by the High Court Division~ His
Lordship remarked that the High Court Divisions conferment on the civil courts
jurisdiction to follow the law as in the Quran disregarding any other law on the
subject including rules laid down by earlier jurists is contrary to established
precedents. He stood against such an interpretive jurisdiction because he
thought that the High Court Division gave the civil courts a wide and unchecked
power to interpret the Quran. He maintained:
It gives a blank check to all Judges of the Civil Court to interpret the Holy
Quran according to their own individual understanding and make it into a binding
law. The Holy Quran has been thrown into the lap of judge to judge, court to
court, to be tossed about freely according to individual understanding,
irrespective of whether they are competent to interpret the Holy Quran
independently or not. This is an invitation to anarchy pernicious in effect.63
The Court therefore questioned the High Court Divisions interpretative
approach. The Court further observed:
There being no direction of payment of maintenance beyond the period of
iddat in the Holy Quran one is bound to follow the other sources of Islamic law for
guidance on the question of the granting maintenance to a divorced woman.
The Appellate Division therefore took the labor of inquiring into the relevant
Quranic provisions, Sunnah and opinion of ancient jurists and came to a
conclusion that Mataa cannot mean maintenance and if amplified it means
compensation.65

63
Ibid.,pp. 190-192.
64
Thid
65
lbid

29
5.2 Suo motu decision of HCD

The third objection against the High Court Divisions decision was that it gave a
suo moW relief to the appellant without any opportunity of being heard to the
respondent appellant That means the respondent did not claim maintenance
beyond the iddat period. It is the High Court Division who, sou motu, ordered for
maintenance beyond iddat period which is violation of rule 7 of Order VII of the
Code of Civil Procedure (CPC) 1908. ~ Appellate Division revealed: The law
requires that the relief, according to Appellate Division, must be specifically
claimed, either simply or in the alternative. It is true that general or other relief
which the Court may think just may be granted although not specifically asked for
but the essential conditions are that, the averments in the plaint must justify such
relief and the defendant must get an opportunity to contest such relief. In the
name of granting general or other relief the court cannot and would not mount
any surprise of the defendant and make him liable for something which does not
arise out of plaint.67

The appellate division has cited a number of decisions from Pakistani and
Indian jurisdiction where the court argued that a court cannot grant relief to the
plaintiff on a case for which there was no claim in the pleadings.

According to appellate division under the revision jurisdiction the High

Court Division was to see if there was any error of law committed by the
subordinate court resulting failure of justice. This error, Appellate Division says,
must have to be found within the framework of the suit and not beyond. It also
observes that the decision of the High Court Division was enhancing the
sentence of an accused in exercise of revision jurisdiction in a criminal case.
Further it terms this kind of exercise as active judicial indiscretion.~
66
The Civil Procedure Code l908 (Act V of I9O8).
67
Prof Dr. Taslima Monsoor, ibid. pp. 198-201.
68
Ibid

30
 CHAPTER 6

FINDINGS

Completing this research paper, I have found the following things:

1. There is no statutory provisions regarding Post Divorce Maintenance.

2. Sometimes the Appellate Division is not wholly right in establishing or
affirming the orthodox rule on post divorce maintenance.
3. There should certain body to implement the laws.
4. Most of the cases, our women dont have any knowledge of proper
information regarding pre-divorce and post divorce maintenance.
5. There is lack of governmental and non- governmental organization
protection.

31
 CONCLUDING REMARKS

In my opinion, divorce severs all the lawful relationship between husband and
wife. They become completely strangers to each other. if the husband marries a
second time, the present wife, whose expenses have been declared wholly a
liability of the husband by Shariat, is as much a woman as the one divorced. So;
the attempt to help a woman who has been divorced and paid her due share is
like trying to rob Peter to pay Paul. The grant of continuous maintenance to the
divorced wife would not only mean monetary injustice to the present wife but also
lead to the moral degeneration of the beneficiary. In my view Appellate Division is
not wholly right in establishing or affirming the orthodox rule on post divorce
maintenance. They could decide the issue on a case by case basis. It will not be
un-Islamic to rule for post divorce maintenance at least for those woman who are
divorced for no fault of their own, who are no longer of marriageable age and
who are destitute and poor and who has no child or other close relatives having
means to maintain her.

In a situation where a Muslim divorced woman has no blood relatives who

would normally support her, the Magistrate should ask to make a monthly
allowance for her maintenance.

Again it can be said that if a woman is given the right to have maintenance
until her death, this power may be abused by woman and a reasonable and fair
provision and maintenance is to be made and paid to her within the iddat period
by her former husband. What is fair and reasonable depends upon
circumstances of the spouses.

32
 RECOMMENDATIONS

1. Statutory provisions regarding Post Divorce Maintenance should be increase.

2. The decision of High Court Division should be considered with due respect.
3. The Governmental body who have the power to implement the laws must be
active.
4. Government should make sure weather the divorced women have the
adequate knowledge of proper information of proper maintenance. In this
governmental, non-governmental and NGO's awareness program should be
increase.
5. Governmental and non-governmental organization must be active whether
the post divorce maintenance of Muslim women is fairly or not. In this
regards, the local government agency should be come forward.

33
 BIBLIOGRAPHY

Books
1. A/A/Asaf Fyzee, Outlines of Muhammadan law, 4th ed.( (New Delhi: NM
Tripathi private Limited, 1974).
2. Ali, Syed Ameer, Muhammedan Law, Vol.11 , 5th cd/ (Allahabad: Central
Law Agency, 1985).
3. Doi, Abdur Rahman, The Islamic Law,1st ed (London: Ta Ha Publishers,
1984).
4. Freeland Abbott, Islam and Pakislan 1st ed./(New York: Cornell University
Press, 1968).
5. Jamal Nasir The Islamic Law of Personal Status, 2nd ed., (London:
Graham & Truman, 1990).
6 Jamal Nasir, The Status of Women under Islamic Law and under Modern
Islamic Legislation, 1st ed., (London: Graham & Truman, 1990).
7. Latif, Syed Abdul, Thrzumatul Quran, 1st ed.Vol. 2, (Delhi: Asia Publishing
House, 1967).
8. Nazmi , Dr. Mohammad, Mohammedan Law, 3rd ed., (Allahabad: Central
Law Publication, 2005), [Durrul-Mukhtar (Dayals English Translation)].
9. Pearl David and Werner Menski, , Muslim Family Law, 1st ed., (London:
Sweet and Maxwell, 1998).
10. Prof. Dr. Taslima Monsoor, From Patriarchy to Gender Equity: family Law
and Its Impact on Women in Bangladesh,1st ed., (Dhaka: The University
Press Limited, 1999.
11. Prof. Dr. Taslima, Gender Equity and Economic Empowerment: Family
Law and Women in Bangladesh, 1st ed., (Dhaka: British Council, 2008).
12. Shabber, Dr. Mohd., Muslim Personal Law and Judiciary, 3rd ed.,
(Allahabad: The Law Book Company, 1988).

34
Statutes

1. The Civil Procedure Code 1908, (Act Vof1908).

2. The Criminal Procedure Code, 1898

35
Journals

1. Muslim Women Right to Maintenance in Bangladesh, - The Daily Star,

January 30, 2005.

2. Obaidul Huq Chowdhuly, Hand Book of Muslim Family Laws, 6th Dhaka
Law Reports, 2005).
3. Prof. Dr. Taslima Monsoor, Judiciary and Gender on Trial: Reported and
Unreported Decisions of Family Courts, (Dhaka : The British Council).

4. Report of the Commission on Marriage and Family Law, ,(Gazette of

Pakistan (extraordinary), June 20, 1956.

5. Shahdeen Malik, Post Divorce Maintenance for Muslim Women in

Pakistan and India Bangladesh Journal Law Vol-2 (1), (Dhaka:
Bangladesh Institute of Law and international Affairs).

Cases

1. Aga Mahomed Jaffer Bindanim vs. Koolsoom Beebee and others, ILR Cal
2. Central Bank Relief& Welfare Society v. India, AIR 1991 SC6
3. Danial Lat vs. Union of India, 7 SCC, 740
4. Mehcr Nigar vs. MojiburRahman, 47(1995) DLR, 18
5. Md Hefzur Rahman vs. Shamsun Nahar Begum 51 DLR (1999) AD 186
6. Mst. Rashida Begum vs. Shan Din & others, PLD (1960), Lah: 1142
7. Pochon Rikssi Das vs. Khuku Rani Dasi and others, 50(1998) DLR, 47
8. Sardar Muhammad vs. Mst. Nasima, 19(1967) DLR (WP) 50
9. Shah Bano vs. Mohd Ahmed Khan, AIR, 1985, (SC) 945
10. Shah Bano vs. Mohd Ahmed Khaan, AIR, 1985, (SC) 945
11. Usman Khan Bahmani vs. Fathimunnessaa Begum, AIR 1990 Mad.
333.1989 (2) MLJ 3441

36