This blog is written by Ayush Khilwani, a Fourth-year law student of Career College of Law, Bhopal

Maintenance generally means keeping something in good condition, maintenance in context to human covers all necessities of living which involves food, clothing, education, medical treatment etc. Maintenance is provided by a person who is legally responsible for covering all the above necessities of family members. The obligation of maintenance is not only limited to the wife it also involves children, parents, grandparents. The main objective of providing maintenance is to provide financial support to the dependents. The right of maintenance is governed by the personal laws such as Hindu law, Muslim law, Christan law etc., Apart from these personal laws the right of maintenance is also governed by the section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS) which was earlier known as section 125 of Criminal Procedure Code. A divorced wife has the right of maintenance by her husband, but under Muslim law, the right of maintenance of divorced women by her husband is a disputable and arguable issue. In recent years, the maintenance of divorced Muslim women has gained increasing attention, highlighting the range of challenges rooted in legal, cultural and social dimensions. In Muslim law maintenance of divorced women is a critical and controversial issue.

A divorced Muslim woman is entitled to claim maintenance by her husband under the following provisions-

1) Muslim personal law

2) The Muslim women [protection of right on divorce] act 1986

3) Section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS) (Section 125 of Criminal Procedure Code.)

Maintenance of Muslim Wife:

· As an obligation of marriage: A husband must maintain his wife as long as the wife remains faithful and obeys all his reasonable orders. A wife can claim maintenance even if she disobeys her husband only if the husband keeps a concubine, the husband is guilty of committing cruelty towards his wife, the husband has not attained puberty etc.

· Based on pre-nuptial Agreement: If the wife has made conditions before the contract of marriage, that in so and so conditions she would be entitled to live separately and claim maintenance against the husband. The conditions could be that the husband will not ill-treat her or take a second wife etc.

A husband is only obligated to provide maintenance to his ex-wife during the iddat period following their divorce.

The whole controversy regarding the maintenance of divorced Muslim women is around the iddat period. Under Muslim law, a husband’s liability to provide maintenance to his divorced wife is only limited to the iddat period, which is a period after the dissolution of Muslim marriage. The iddat period is three menstrual cycles if the husband is the one to file for divorce. So Muslim law created the liability of maintenance over the husband which was extending only to the iddat period which is generally of 3 months. The divorced Muslim women were facing many challenges as they were obligated to take care of their maintenance after 3 months of dissolution of marriage whereas there is no such period of maintenance in any other personal law. So, most of the Muslim women were unable to maintain themselves after the iddat period and there was inequality in getting maintenance by Muslim women as compared to women of other religions. So, the topic of maintenance of divorced Muslim women became very hot and controversial in the 1980’s.

The situation escalated when section 125 of CrPC was brought up. This section stipulates that a Judicial Magistrate of First Class has the authority to mandate an individual to provide support to specific individuals if the court receives evidence of neglect from someone, with adequate means who is refusing to provide for.

· a wife unable to support herself.

· legitimate or illegitimate minor children,

· legitimate or illegitimate adult children, with physical or mental disabilities

· parents unable to support themselves.

The provisions provided under section 125 of Criminal procedure code are now provided under section 144 of Bharatiya Nagarik Suraksha Sanhita (BNSS). These provisions govern maintenance regulations across all laws. So, Muslim personal law was obligating husband to provide maintenance to his ex-wife only till iddat period whereas provisions given under section 125 of CrPC were enabling divorced Muslim women to claim maintenance even after the expiry of iddat period. So, the provisions of section 125 CrPC and the provisions of Muslim personal law were contradictory to each other which escalated the controversy.

"Mohd. Ahmed Khan v. Shah Bano Begum (1985) [AIR 945] [SCR 844]"

Mohd. Ahmed Khan vs Shah Bano Begum (1985) commonly referred as the Shah Bano case was a controversial maintenance lawsuit in India in which the Supreme Court delivered a judgement favoring maintenance given to an aggrieved divorced Muslim woman.

Muslim women were only entitled to get Maintenance during the iddat period after the dissolution of marriage but in this case, the Supreme Court delivered a judgement saying that “A woman has right to claim maintenance under section 125 of CrPC as code is criminal law not a civil law” so in this case court held Mohd. Ahmed to provide maintenance to her divorced wife even after the iddat period. According to the Supreme Court, “There was no conflict between Section 125 of CrPC and Muslim laws because Section 125 of CrPC applies to all regardless of their caste, creed or religion and it is criminal, unlike Muslim civil law.”

The Shah Bano judgement elicited a protest from many sections Muslims they believed that it was an attack on their religion and Muslim personal law, so there were many protests and conflicts, so to deal with all those issues the government of India enacted the ‘The Muslim Women (Protection on Rights of Divorce) Act 1986’

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

Parliament for its vote bank politics gave up on the protest and enacted this law diluting the Shah Bano Judgement of the Supreme Court. This act limited the liability of the husband to pay the maintenance till the iddat period only. (Which is mentioned in the Muslim personal

law) Some important key provisions of this act are:

· Section 3(1)(b): This section provides that the divorced women is entitled to a fair amount of maintenance for herself during the period of iddat from her husband, if the divorced women remain unmarried after iddat entitled to get maintenance from her such relatives who would inherit her property is upon her death.

· Section 4(2): This Section provide that in absence of any person relative or if relative is not able to maintain then the liabilities upon the Waqf Board to maintain’’

So, this act surpassed the decision of the Supreme Court given in the case of Shah Bano case and this act held that the obligation of Muslim husband to pay maintenance to his ex-wife is only limited to iddat period.

Again, the topic of maintenance of divorced Muslim women caught fire and again this topic came in controversy and government’s move to enact this act was considered as spineless move.

So again, after the commencement of this act, the condition of divorced Muslim women was declining as they were unable to get the maintenance after iddat period and they were facing many challenges in maintaining themselves, but the condition of Divorced Muslim Women slightly improved after the case of Danial Latifi vs Union of India (2001).

Danial Latifi vs Union of India (2001) [AIR SUPREME COURT 3958]

This case is also one of the landmark cases of the Supreme court and this lawsuit also played an important role in this controversy. Under this case, the Supreme Court said that a Muslim husband’s liability to pay maintenance to a divorced wife (under The Muslim Women Act) 1 is not limited to the iddat period. He must arrange the maintenance within the period of iddat for her wife. So, the maintenance would also account for after the iddat period, but the husband must arrange it before the end of the iddat period, but the Court held The Muslim Women Act 1986 as constitutional. So, if the husband is unable to pay the maintenance to his divorced wife, then the provisions of The Muslim Women Act 1986 will be applicable which means if the husband is unable to pay the maintenance to his divorced wife, then the wife will get maintenance either by her relatives or by Waqf Board as mentioned in the act.

After this decision there was slight improvement to the challenges faced by divorced Muslim women. Although this topic remained in controversy, but the Courts started giving judgements favoring Muslim women.

In the case of “Shabana Bano vs Imran Khan (2009)”, the court held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under section 125 of CrPC after the expiry of the iddat period, if she does not remarry.

The contradictory battle between section 125 of CrPC and Muslim personal law or The Muslim Women Act began in 1980 and continued till 2024 and all this time the topic of maintenance of divorced Muslim women remained in controversy. Recently this topic again came into fire in the case of Mohd Abdul Samad vs State of Telangana.

Mohd Abdul Samad vs State of Telangana (2024)

In this case Supreme Court, Dismissed the petition challenging the Applicability of Section 125 of CrPC (which is now section 144 BNSS) to Divorced Muslim Women. Under this case, Muslim Man filed a petition to challenge the order of the High Court of Telangana to pay the interim maintenance to the divorced wife under section 125 CrPC. The petitioner argued that The Muslim Women Act should have an overriding effect on Section 125 of CrPC which is a secular law.

Supreme Court Dismissed the appeal, stating that Muslim women can seek maintenance under section 125 of CrPC despite the existence of The Muslim Women Act. Supreme Court also held that Section 125 of CrPC applies to all women, not just married women. Supreme Court’s judgement safeguarding the constitutional guarantee of Equality and Non-Discrimination. In this case, the Supreme Court also noted that Section 3 of the 1986 Act, starting with a non-obstante clause, does not restrict the application of Section 125 CrPC, but rather provides an additional remedy. The court also stated that divorced Muslim Women including women divorced through triple talaq (which is now illegal), can claim maintenance under section 125 of CrPC regardless of their laws.

Conclusion:

The maintenance of divorced Muslim women is a complex issue shaped by the influence of legal, cultural, and social factors. While Islamic principles provide a foundation for women’s rights, the application and interpretation of these principles can vary widely. The journey of divorced Muslims women for seeking maintenance has been marked by significant challenges, stretching from 1980 to the present day. Throughout the years, courts have come to recognize the necessity for fair resolutions and have taken steps to meet the particular requirements of Muslim divorced women. Addressing these issues serves the core values of justice and equity found in all legal systems.

We can provide better support to divorced Muslim women by acknowledging the past and working towards the more responsive legal framework, ensuring justice for everyone.

References:

1) Prashant Prasad, “Maintenance under Muslim Law”, August 28, 2024, https://blog.ipleaders.in/an-exhaustive-overview-of-types-of-maintenance/, accessed on 2nd September 2024

2) Indrasish Majumder, “Iddat under Muslim Personal Law”, Apr 28, 2023, https://lawctopus.com/clatalogue/clat-pg/iddat-under-muslim-personal-law/, accessed on 2 September 2024

3) [Ananthakrishnan G, “Divorced Muslim women can claim maintenance under Section 125 of Criminal Procedure Code: SC,”, July 11, 2024, https://indianexpress.com/article/india/divorced-muslim-women-maintenance-section-125-crpc-supreme-court-9444018/, accessed on 4th September, 2024