Under Muslim law, ‘maintenance’ is called ‘nafaqa’ and it includes food, clothing and lodging. Muslim personal law imposes limited obligation on the husband to maintain his wife after divorce. The Muslim law imposes the liability to maintain the divorced wife only during the period of Iddat and not thereafter. The Muslim Women (Protection of Rights on Divorce) Act 1986 (“The Act”) was passed to protect the rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands.[1]
The era of Shah Bano Begum
The landmark judgment of Ahmed Khan v. Shah Bano Begum[2] shows the struggle that Muslim women face in maintenance cases. Shah Bano, 62-year-old Muslim women was married to Ahmad Khan who had pronounced talaq or divorce against her. Since she could not maintain herself and her 5 children, she had approached the court under section 125 of the Code of Criminal Procedure (Cr.P.C.) which imposes a duty upon the husband to provide for his divorced wife, in case she is unable to provide for herself. Her husband relied on the argument that the issue would fall under the purview of Muslim personal law and as per Muslim personal law, he would only be liable to pay maintenance for the iddat period along with the return of the mehr.
The case, however, was decided in favor of Shah Bano and it was held that Muslims were not excluded from exercising their rights accruing from secular laws. In this case, the Supreme Court attempting to ensure continuing respect for Muslim women’s claim to equal treatment, regardless of their membership into a particular religion.[3] However, the Muslim orthodoxy severely condemned it. They saw this case, which had created a breakthrough for Muslim women to address their grievances as an encroachment into the Muslim Shariat Law that they were bound by.
The Muslim Women Act (Protection of Rights on Divorce), 1986
During this time, the Bharatiya Janata Party, a right Hindu dominated party were growing in popularity, making the Muslim minority in India anxious.[4] There was a rise of communal tensions even before the Shah Bano case with regards to the issue of Babri Masjid in Agra and the passing of the judgment further added to the general air of distrust between the religious groups. Moreover, the Congress Party, which was the ruling party then, had a looming sense of insecurity with regards to the coming elections where they had feared that there would be a shift in power towards the BJP.
The then Rajiv Gandhi government “recognized their alarm” towards this ruling and had therefore legislated the Muslim Women Act (Protection of Rights on Divorce), 1986 to gain the support of Muslim voters in an increasingly hostile political climate. The Act is declaratory and codifies important pre-existing rules of Muslim Law. The Act makes provision for:
- Maintenance of a divorced Muslim wife during and after the period of Iddat.
- For enforcing her claim to unpaid dower and other exclusive properties.
It was enforceable against the former Husband, relatives and the Waqf Board. The Act had provisions that in essence went against the decision by the court in Shah Bano. The bill had exempted Muslim women from availing reliefs under section 125 of the Cr.P.C, which had been used to override Muslim.
The section also stipulates that if after the lapsing of the iddat period, the woman is unable to support herself, then the court would order her relatives (who would inherit her property on death or otherwise) to pay a reasonable and fair maintenance to her and if she does not have any such relatives, the State Waqf Board would be liable to pay maintenance to her.
The word “provision” with respect to the impugned section meant an act of providing something in advance in order to ensure that the needs of the divorced wife are met (these could include food, clothes and garments and other articles conditional upon the husband’s means.). This might appear to be for the benefit of the woman and making it seem like women are beneficiaries of the Act, but this is not the case.
Beyond this facade lay many other aspects that are arbitrary and unfair towards women. For instances, the Act does not empower the woman to avail maintenance after the lapsing of the period of Iddat since there are words such as ‘within’. Secondly, the Act also espouses the restricted application of the secular provision of Section 125 of the Cr.P.C. to divorced Muslim women.
For this purpose, the judiciary began to adopt different lines of interpretation due to the vagueness and the ambiguity of several provisions and words of the Act, including the preamble. The lawyer in the Shah Bano case filed a writ petition under Article 32[5] challenging the constitutional validity of the Act. This was the case of Daniel Latifi v Union of India[6]. The case made Section 3 of the Act the pivotal point due to its restrictive application.
In this judgment, the Supreme Court upheld the validity of the Act after coming to a compromise but decided that the secular provision for maintenance would be applied equally to the Muslim community. Sections 3 and 4 were interpreted liberally and it was stated that a divorced Muslim woman is entitled to reasonable and sufficient provision for livelihood along with maintenance. However, this maintenance was held to not be limited to the Iddat period, and a Muslim wife is also eligible to be paid maintenance for a period beyond iddat through her life until she has remarried.
The case had first analysed the preamble of the Act, the Shah Bano case and ultimately upheld the validity of the Act. The court had stated that the ‘reasonable’ and ‘fair’ provisions for the future included maintenance extended beyond the iddat, but had to be paid by the husband within the iddat period in terms of Section 3(1)(a) of the Act. Further, under Section 4 of the Act, the divorced wife may also proceed against her relatives who are liable to maintain her in proportion to the properties which they inherit from her after her death. This includes her children and parents. If none of these relatives has means of maintaining her, the duty would shift to the State’s Waqf Board, wherein the court may order the Board to pay her such maintenance.
The court had held that the Act does not contravene Article 14, 15 and 21 of the Indian Constitution. The judgment stated that the Legislature does not intend to enact unconstitutional laws and that “an appropriate” reading of the Act must be adopted in order to understand that nowhere the Parliament has limited the reasonable and fair provision for maintenance to the iddat period and it would extend to the whole life of the divorced wife up until she gets married for the second time.
This provision continues to be problematic because the vagueness of the words continue to give window to regressive judgments being passed by the courts. For instance, in the case of Haseena v. Abdul Jaleel[7], the issue of whether provision for educational expenses is a “reasonable and fair” criterion for fixing the quantum of maintenance was mooted. The court did hold in this case that the divorced wife may claim a sum on these grounds given her circumstances. The reasoning adopted however, was the fact that she was pursuing her education at the time before marriage and that is also a relevant factor in fixing “reasonable and fair provision and maintenance”.[8]
Application of Secular Laws
Section 125 of the Code of Criminal Procedure, 1898 also enables a muslim wife to claim maintenance after divorce. While Section 125 seemed to have uniform applicability, however, the consent of both husband and the wife is required. In such situation, realistically, the husband will never agree to file an application under Section 125 of the Code when he has a choice of enjoying lesser liability under the Act. If the husband cannot or refuses to provide her with maintenance her only recourse becomes to rely on the Waqf board or her family. Thus, in practice, there is no usage of such secular law.
There was confusion that existed until it was clarified in the case of Shamim Bano v Ashraf Khan.[9] This case is a milestone towards protecting the rights of Muslim women as it interprets Section 125 of the Code of Criminal Procedure to be universally applicable to women regardless of the dicta of personal laws on the matter. Taking the lead from the popular Shah Bano case, the Supreme Court of India held that Section 125 would apply to Muslim women, and they would be entitled to maintenance irrespective of Mahomedan law’s views on the matter.
In the Shamim Bano case, the court had considered for the first time that if it made joint petition mandatory, there would be a gross miscarriage of justice putting additional pressure on the woman who was already at a vulnerable position due to the social pressures and legal pressures (in addition to financial insecurity) that accrues from divorce. In this particular case the court realized that if the application under Section 125 were not accepted, Shamim Bano would be remediless as the Magistrate’s order only ensured her Mahr and did not give her any maintenance. Thus, the court reasoned that Section 125 parameters should be applied in order to prevent any further and future travesty of justice.
Frequently Asked Questions
1. What is maintenance under Muslim law?
Maintenance under Muslim Law known as ‘Nafqah’ means amount spent by a man on his family to provide for food, shelter, clothing, lodging and other essential requirements for livelihood. A muslim husband has obligation to maintain his wife during the subsistence of marriage. A husband is require to maintain his wife irrespective of his financial condition.
2. When a Muslim woman is not entitle to claim maintenance under Muslim law?
Following are the situations where a muslim woman is not entitle to maintenance:
a. When she has not attained puberty
b. When she has abandoned her husband and marital obligations and duties for sufficient reason
c. When she eloped with other man
d. When she disobeys the reasonable commands of her husband.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Preamble Muslim Women (Protection of Rights on Divorce) Act 1986.
[2]K K. Sangari, Politics of the Possible: Essays on Gender, History, Narratives, Colonial Press, Indian Journal of Gender Studies, (2002) 405-407.
[3] Mullally, Siobhan. Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case. 24(4) Oxford Journal of Legal Studies, (2004) 671-92. <http://www.jstor.org/stable/3600532>.
[4] K. Sangari, Politics of the Possible: Essays on Gender, History, Narratives, Colonial Press, Indian Journal of Gender Studies, (2002) 405-407.
[5] Constitution of India 1950, art 32.
[6]AIR (2001) SC 3958.
[7] II 2007 DMC 215 Ker.
[8] id. p 12.
[9]2014 CR. LJ 4818.
