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RIGHT TO MAINTENANCE OF MUSLIM WOMEN

Maintenance - Muskan Verma (1)

INTRODUCTION

Analyzing the relevant sections and landmark decisions given in light of the available recourses for maintenance of Muslim women under Indian and Personal law.

A Muslim woman is entitled to have certain recourses in the event of a separation or divorce wherein she can claim maintenance. Maintenance is known as nafqa and comprises providing the essentials for existence such as food, shelter, or just a form of payment. There are various laid down permutations and combinations under Muslim law that are available to a Muslim woman if she for specific incidents leaves her spouse.

We must first look at a basic law that allows for the empowerment of a Muslim woman in Section 125 of the CrPC. If a husband for certain reasons chooses to not maintain his wife for specific unlawful reasons, then a woman can approach a magistrate court and apply for maintenance under Section 125. The court will consider such an application under two circumstances. The first is that if there has been a neglect of the appellant or claimant by her husband and the second is that if the claimant cannot maintain herself adequately and healthily. While this can be construed in a general sense, a Muslim woman can claim maintenance under Section 125 mainly because the application of Section 3 (1b) of the Muslim Woman (Protection of Right on Divorce) Act of 1986  will not affect the provision of the Cr. P.C. Hence the Cr.P.C. is the governing rule in the light of any cases that arise in front of magistrates under Personal law.

The Muslim woman has an inherent right to be maintained properly by the husband. In case there is a void or an irregular marriage that has taken place there will be no reasons for a Muslim woman to maintain his wife. Such a right is available to the woman as it is an independent and a ‘debt making ‘right. It is one that ensures there is an obligation of the husband to repay all the services rendered by the wife during the marriage life and if the woman has discharged all her required duties in an appropriate and due manner.[2] There are certain instances such as if there are medical issues, ill health, old age, etc, where the wife can still claim maintenance in the event of a marriage that cannot be consummated. A modern perspective that is incorporated in this sense would be that of a prenuptial agreement where there is a certain amount of maintenance done during the falling out of marriage or ill-treatment by the husband.

OTHER INSTANCES

A woman cannot claim maintenance if she has left her husband, has not attained puberty, disobeys, or goes against the directions of her husband, or has an affair/elopes with another man. If there is an application by a claimant on the grounds of cruelty meted out to her by her husband, the husband is still obliged to pay maintenance to her. Just like the aforementioned scenario, there must be evidence of an apprehension to mistreat the woman as well as the ill-treatment that has been carried out by her spouse.

COURT DECISIONS & RELEVANCE

One of the landmark judgements that was passed in the Supreme Court was Mohd Ahmed Khan v Shah Bano Begum [1] where the issue pertained to the payment of Mehr during the period of iddat and if the payment of iddat also removed any obligations of a husband to provide maintenance. Overruling any decisions made by previous courts, it was held that Mehr would not be construed as a permanent payment received as maintenance as it was not the same. Section 125 is the law for all religions and could be used to claim the right to maintenance by a Muslim woman if she is denied the right to sustain herself.

A specific example of legislation passed to cater to the needs of Muslim women was the Muslim Woman (Protection of Right on Divorce) Act of 1986. It proved controversial because of the emphasis on the payment of maintenance by a husband during the period of iddat and thereafter in the event of a woman who couldn’t maintain herself, she can claim money from her relatives or the specific area Wakf board. Going by the clauses mentioned in the act, it was challenged in court in the case of Daniel Latifi v Union of India [2]. The constitutional validity was challenged and the court struck down the case as one that is not in contravention of Section 125 of the Cr.P.C.  However, the court made a notable decision of extending the payment made during the iddat period by mentioning that the payment should take extend till the lifetime of the woman and not just be made for the iddat period.

A few examples of relevant Sections are Section 5 where the woman has an option to be governed under the laws of Section 125-128 of the Cr.P.C. Another instance could be that of Section 4 wherein relatives are expected to make the necessary payment for a woman who is unable to re-marry and the relatives will be entitled to her property after her death.

Overall the rights are construed in a way that allows for the divorced woman to claim what is hers while also being reasonably restricted in the eyes of law in case she is married, has property, or is single and requires maintenance for the rest of her life. Such laws have created both political and judicial controversies in the Indian legislative fraternity which has often been at the centre of several political contentions that have threatened to destabilize the religious communities. However, the rights of the women are clearly defined and give rise to necessary and relevant recourses that must be implemented to provide justice for those who have been denied it inside their homes.

Author(s) Name: C C Chengappa (O P Jindal Global University, Sonipat) 

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Reference(s):

[1] Mohd Ahmed Khan v Shah Bano Begum 1985 AIR 945, 

[2] Daniel Latifi v Union of India CASE NO.: Writ Petition (civil) 868  of  1986

[3] Wani, M. Afzal. “MAINTENANCE OF WOMEN AND CHILDREN UNDER MUSLIM LAW: LEGISLATIVE TRENDS IN MUSLIM COUNTRIES.”

[4] https://www.legalbites.in/maintenance-to-muslim-women/

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