203855144 maintenance muslim law project

7/25/2019 203855144 Maintenance Muslim Law Project

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TAMIL NADU DR. AMBEDKAR LAW UNIVERSITY

Subject: Legal Educatio ad Re!ea"c# Met#odolog$

To%ic: &Maiteace Ude" Mu!li' La()

Submitted to: Dr. D. Umamaheswari

Name of Student: Rajarshi Mukherjee

Branch: Semester I

LL.M !rimina" Law and !rimina" #ustice $dministration%


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Contents

Maintenance Under Mus"im Law...............................................................................................&

!"aim for maintenance under !r'!(..........................................................................................)

Ri*ht of Mus"im di+orced woman to maintenance....................................................................,

Bib"io*ra-h............................................................................................................................./0

1


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Maintenance Under Muslim Law

Concept of maintenance

Under Mus"im Law2 a man is bound to maintain his wife irres-ecti+e of his and her means

and2 his minor chi"dren2 if he is not indi*ent. 3e is ob"i*ed to maintain his other re"ati+es

from whom he can inherit2 if he has means to do so2 and the are indi*ent.

4he term maintenance a re"ate to maintenance of wi+es2 di+orced wi+es2 widows2 chi"dren2

o"d and infirm -arents concubines etc.

4he $rabic e5ui+a"ent of 6maintenance7 is Nafaqa, which "itera"" means,89hat a -erson

s-ends o+er his fami". In its "e*a" sense2 maintenance si*nifies and inc"udes three thin*s: i%

food; ii%c"othin*2 and iii% "od*in*./

ed as fo""ows

i. Under Mus"im "aw there are +er few -ro+isions for the maintenance of the

re"ati+es. $s *enera" ru"e2 no re"ation e?ce-t a wife who is in 6eas circumstances72

has an c"aim for maintenance. But a Mus"im is bound to -ro+ide and is entit"ed to

recei+e maintenance from his ascendants and descendants e?ce-t under certain

circumstances.

ii. $ccordin* to Mus"im "aw on" those -ersons are entit"ed to maintenance who are

indi*ent and necessitous and are unab"e to earn their "i+e"ihood./$meer Lai :Mohammedan Law2 @o" II

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Liability for maintenance a -erson becomes "iab"e for Nafa5a or maintenance on account

of a -erson:(

i. Bein* his wife

ii. Bein* his re"ati+e .i.e. chi"dren 2 *randchi"dren 2 a*ed -arents and other re"ati+es;

iii. Bein* his ser+ant.

Re5uisites for a c"aim(


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Under section & /% b% of the /,C act contem-"ates the di+orcee wife ri*ht to c"aim

maintenance in res-ect of her chi"dren and thus has nothin* to do with the

inde-endent ri*ht of the chi"dren as he"d inHaji Farand !li ". Noorjahan#%. 4o be

maintained b the father under the Mus"im "aw. 4he ri*ht of the chi"dren is se-arate

and inde-endent of the di+orcee wife7s their mother7s% ri*ht to c"aim maintenance.

Natura"" therefore2 such a ri*ht cannot certain" be affected b the -ro+ision of

section & /% b% of the new act&

9hen the father has no means and is indi*ent the 'ot#e" i! liableto maintain the chi"dren

But2 when both father and mother are unab"e to maintain their chi"dren the "iabi"it of

"ad%a"et!-aterna" or materna" arises.

4here is no ob"i*ation on *at#e"-i-la(to maintain the widow of his son.

A!cedat! !hi"dren7s Liabi"it as the -arents are under an ob"i*ation to maintain

their chi"dren2 so are chi"dren "iab"e

If there are; i% no chi"dren2 or ii% the chi"dren are indi*ent2 it is "iabi"it of the

g"adc#ild"eto -ro+ide maintenance to their *rand-arents.

9ife a% durin* subsistence of marria*e( accordin* to the ordinar se5uence of natura" e+ents

the wife comes first.03er ri*ht of maintenance in this case is abso"ute. 3er ri*ht remains

un-rejudiced e+en if she has -ro-ert or income of her own and the husband is -oor. $

husbandd is bound to maintain his wife2 irres-ecti+e2 of bein* a mus"im2 non(mus"im2 -oor or

rich2 oun* or o"d. Such a""owance are ca""ed kharch(i(-andan2 *u>ara2 mawa(khori. Atc. the

husband is bound to maintain if she fu"fi""s the fo""owin* conditions :

/% She has attained -ubert i.e. an a*e at which she can render to the husband his

conju*a" ri*hts.

1% She -"aces and offers to -"ace herse"f in his -ower so as to a""ow free access to herse"f

at a"" "awfu" times and obes a"" his "awfu" commands.

1

/,, !r. L# /01/ Rai.%&Siraj Sahebji Mujawar +. Roshan Siraj Mujawar2 $IR / Bomba &0E.0F>ee: Gut"ines of mohammdan "aw &rd edn -11

E


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Du"atio o* Maiteace( 4he wife7s ri*ht to maintenance ceases on the death of her

husband2 for her ri*ht of inheritance su-er+enes. 4he widow is therefore2 not entit"ed to

maintenance durin* the iddat of death.

But under Mus"im "aw2 a di+orced wife is entit"ed to be maintained b her former husband

durin* the -eriod of iddat.

Huaranic +erses *i+e c"ear cut -icture that a di+orced is entit"ed for maintenance ti"" the

e?-ir of iddat -eriod. In case she is -re*nant this -eriod e?tends u-to the de"i+er

C


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Claim for maintenance under CrPC-

Under section /1E of the crimina" -rocedure code /)&2 the term 2 6wife7 inc"ude a di+orced

wife or a wife who has obtained a di+orce from her husband and has not remarried. Under themus"im "aw2 the husband is "iab"e to maintain his di+orced wife ti"" the -eriod of iddat

on"and his "iabi"it to maintain the di+orced wife terminates after this -eriod. But2 under the

!r.'.! /)&2 a di+orced wife is entit"ed to be maintained b her former husband beond the

-eriod of iddat -ro+ided she remains unmarried. But a di+orced wife7s ri*h to maintainence is

subject to section /1) &% of the act which "as down that the order for the maintenance ein

fa+or of a di+orced wife sha"" be cance""ed 2 and such woman aha"" not be entit"ed to

maintenance :

/% 9here she has remarried

1% 9here she has recei+ed the who"e sum due to her under an customar or -ersonne"

"aw2 and

&% 9here she has +o"untari" surrendered her ri*hts to maintenance after her di+orce.

InZohra $hatoon % Mohd &'rahimE2 the Su-reme !ourt had he"d that the word 6wife7 in

section /1E /% e?-"anation b% of !r.'.! inc"udes a woman who has obtained a decree of

disso"ution of her marria*e under an of the -ro+isions of disso"ution of Mus"im marria*e act

/&.

E$IR /,/ S! /10

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Right of Muslim divorced woman to maintenance

In Shah Bano Be*um +. Mohd. $hmad =han C2 the fi+e jud*es bench of the S! he"d that a

Mus"im husband ha+in* sufficient means must -ro+ide maintenance to his di+orced wife whois unab"e to maintain herse"f . whether the s-ouses are 3indus2 Mus"ims2 !hristians .etc. is

who"" irre"e+ant to the a--"ication of section /1E of !r.'.! . It was he"d that a Mus"im

Di+orced woman who cannot maintain herse"f is entit"ed to maintenance from her former

husband ti"" the time she *ets remarried.

4he contention that deferred mahr (oer) is a -ament on the di+orce of a wife and hence

such -ament under the -ersonne" "aw e?c"udes the -ament of an maintenance b the

husband to the wife was a"so rejected. It was said that under section /1) &% b% !r.'.! Mahr

is an amount which the wife is entit"ed to recei+e from the husband in consideration of the

marria*e.)

Suit *o" 'aiteace - if the husband ne*"ects or refuses to maintain his wife without an

"awfu" cause2 the wife ma sue him for maintenance either under the Mus"im "aw or under

section /1E and S./1C of !r.'.!2 /)&,.

Now the "aw re"atin* maintenance of Mus"im di+orced woman is *o+erned b the Mus"im

woman 'rotection of Ri*hts on Di+orce% $ct2 /,C2 Section /1E !r ' ! has no a--"ication

so far as Mus"ims are concerned.

C

$IR /,E S! 0E)Mst. ohara =hatoon +. M. Ibrahim 2 $IR /,C S! E,),Bai 4ahira+. $"i hasan fasa"i 2 $IR /) S! &C1; Fa>"unbi +.=. =hadar $"i $IR /, S! /)&

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T#e State'et o* /bject! ad Rea!o! to t#e bill0 (#ic# "e!ulted i t#e Act 2 "ead! a!

*ollo(!:

4he decision of the Su-reme !ourt in Mohd. $hmed =han +. Shah Bano Be*um and Grs.

has "ed to some contro+ers as to the ob"i*ation of the Mus"im husband to -a maintenance to

the di+orced wife. G--ortunit has2 therefore2 been taken to s-ecif the ri*hts which a

Mus"im di+orced woman is entit"ed to at the time of di+orce and to -rotect her interests. 4he

Bi"" accordin*" -ro+ides for the fo""owin* amon* other thin*s2 name":

a% a Mus"im di+orced woman sha"" be entit"ed to a reasonab"e and fair -ro+ision and

maintenance within the -eriod of iddat b her former husband and in case she maintains the

chi"dren born to her before or after her di+orce2 such reasonab"e -ro+ision and maintenancewou"d be e?tended to a -eriod of two ears from the dates of birth of the chi"dren. She wi""

a"so be entit"ed to mahr or dower and a"" the -ro-erties *i+en to her b her re"ati+es2 friends2

husband and the husbandJs re"ati+es. If the abo+e benefits are not *i+en to her at the time of

di+orce2 she is entit"ed to a--" to the Ma*istrate for an order directin* her former husband to

-ro+ide for such maintenance2 the -ament of mahr or dower or the de"i+er of the

-ro-erties.

b% 9here a Mus"im di+orced woman is unab"e to maintain herse"f after the -eriod of iddat2

the Ma*istrate is em-owered to make an order for the -ament of maintenance b her

re"ati+es who wou"d be entit"ed to inherit her -ro-ert on her death accordin* to Mus"im Law

in the -ro-ortions in which the wou"d inherit her -ro-ert. If an one of such re"ati+es is

unab"e to -a his or her share on the *round of his or her not ha+in* the moans to -a2 the

Ma*istrate wou"d direct the other re"ati+es who ha+e sufficient means to -a the shares of

these re"ati+es a"so. But where2 a di+orced woman has no re"ati+es or such re"ati+es or an

one of them has not enou*h means to -a the maintenance or the other re"ati+es who ha+e

been asked to -a the shares of the defau"tin* re"ati+es a"so do not ha+e the means to -a the

shares of the defau"tin* re"ati+es the Ma*istrate wou"d order the State 9akf Board to -a the

maintenance ordered b him or the shares of the re"ati+es who are unab"e to -a.

S#a# Bao Begu' 1a!e #i!to"$


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4he a--e""ant2 who is an ad+ocate b -rofession2 was married to the res-ondent in /&1.

4hree sons and two dau*hters were born of that marria*e. In /)E the a--e""ant dro+e the

res-ondent out of the matrimonia" home2 in $-ri" /),; the res-ondent fi"ed a -etition a*ainst

the a--e""ant under Section /1Eof the !ode in the court of the "earned #udicia" Ma*istrate

First !"ass%2 Indore askin* for maintenance at the rate of Rs. E -er month. Gn No+ember

C2 /), the a--e""ant di+orced the res-ondent b an irre+ocab"e ta"a5. 3is defense to the

res-ondentJs -etition for maintenance was that she had ceased to be his wife b reason of the

di+orce *ranted b him2 to -ro+ide that he was therefore under no ob"i*ation maintenance for

her2 that he had a"read -aid maintenance to her at the rate of Rs. 1 -er month for about

two ears and that2 he had de-osited a sum of Rs. & in the court b wa of dower durin*

the -eriod the of iddat. In $u*ust2 /) the "earned Ma*istrate directed a--e""ant to -a a

-rince" sum of Rs. 1E -er month to the res-ondent b wa of maintenance. It ma be

mentioned that the res-ondent had a""e*ed that the a--e""ant earns a -rofessiona" income of

about Rs. C2 -er ear. In #u"2 /, in a re+isiona" a--"ication fi"ed b the res-ondent2

the 3i*h court of Madha 'radesh enhanced the amount of maintenance to Rs. /).1 -er

month. Indian Mus"im women2 es-ecia"" those who sha"" be "eft destitute2 are b justice and

b ri*ht2 deser+e financia" su--ort from their e?(husbands2 e+en beond the iddat -eriod. 4his

was the -osition of the Su-reme !ourt in the Shah Bano case.

4his -osition sha"" be justified b showin* that this is in a*reement with India7s constitution

and the crimina" code with the Uni+ersa" Dec"aration of 3uman Ri*hts and the Is"am faith

itse"f. 4he crimina" code2 s-ecifica"" artic"e /1E(/1)2 does -ro+ide that husbands shou"d *i+e

financia"" su--ort to di+orced2 destitute women. It shou"d be noted that in India2 the crimina"

code a--"ies to e+erone2 irre"e+ant of re"i*ion2 because of the "ar*e number of KKminorities

Ja""ows for different -ersona" "aws to *o+ern the Mus"ims2 the 3indus2 and the !hristians2

which somehow *i+es certain autonom amon* these *rou-s of -eo-"e. 4he Su-reme

!ourt e+entua"" decided in /,E that the husband shou"d *i+e financia" su--ort to Shah

Bano2 a decision which used a *ood number of the

Mus"im -o-u"ation in India to -rotest. 4he Indian Mus"ims su--orted b

their "eaders c"aimed that accordin* to their -ersona" "aws 2 wi+es can on" be su--orted b

their husbands for u- to three months 2 i .e 2 within the -eriod of the iddat. Beond

this it is not anmore the res-onsibi"it of the husband. Instead2 res-onsibi"it is now +ested

on the fema"e7s re"ati+es or in cases of financia" inca-acit of the fema"e7s re"ati+es2 to the

State 9akf Board. 4he c"aimed that the decision of the Su-reme !ourt is in trans*ression of

their -ersona" "aws and therefore not to be u-he"d. Mus"im *rou-s in turn -ro-osed

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the Mus"im 9omen Bi"" 'rotection of Ri*hts on Di+orce % act /,C which states that

a di+orced woman sha"" be entit"ed to KKa reasonab"e and fair

-ro+ision and maintenance to be made and -aid to her within the iddat -eriod.

IN T2E SU3REME 1/URT /, INDIA

$--e""ants: Daial Lati** ad A".

V!.

Res-ondent: Uio o* Idia 4U/I5

Decided Gn: 1/..1/

T#e co!titutioal ad legal 6alidit$ o* t#e Act #a! bee c#alleged i t#e %etitio! . 4he

Su-reme !ourt in Mohd. $hmed +. Shah Bano Be*um and Grs. /,E% 1 S.


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! Muslim hus'and is lia'le to make reasona'le and fair pro"ision for the future of the

di"orced ife hich o'"iousl* includes her maintenance as ell. uch a reasona'le and fair

pro"ision e0tending 'e*ond the &ddat period must 'emade '* the hus'and ithin the &ddat

period in terms of ection 1(2)(a) of the !ct 3ia'ilit* of Muslim hus'and to hid di"orced ife

arising under ection 1(2)(a) of the !ct to pa* maintenance is not confined to &ddat period.

$ di+orced Mus"im woman who has not remarried and who is not ab"e to maintain herse"f

after Iddat -eriod can -roceed as -ro+ided under Section 0 of the $ct a*ainst her re"ati+es

who are "iab"e to maintain her in -ro-ortion to the -ro-erties which the inherit on her death

accordin* to Mus"im "aw from such di+orced woman inc"udin* her chi"dren and -arents. If

an of the re"ati+es bein* unab"e to -a maintenance2 the Ma*istrate ma direct the State

9akf Board estab"ished under the $ct to -a such(maintenance.

Mus"im 9omen 'rotection of Ri*hts on Di+orce% $ct2 /,C !entra" $ct 1E of /,C%((B

A?c"usion of the a--"ication of Sections /1E to /1, of the !ode of !rimina" 'rocedure2 the

$ct is not +io"ati+e of $rtic"es /02 /E and 1/ of the !onstitution of India.

3e"d: $ com-arison of these -ro+isions with Section /1E !ode Gf !rimina" 'rocedure wi""

make it c"ear that re5uirements -ro+ided in Section /1E and the -ur-ose2 object and sco-e

thereof bein* to -re+ent +a*ranc b com-e""in* those who can do so to su--ort those who

are unab"e to su--ort themse"+es and who ha+e a norma" and "e*itimate c"aim to su--ort is

satisfied.

A+en under the $ct2 the -arties a*reed that the -ro+isions of Section /1E !ode of !rimina"

'rocedure wou"d sti"" be attracted and e+en otherwise2 the Ma*istrate has been conferred with

the -ower to make a--ro-riate -ro+ision for maintenance and2 therefore2 what wou"d be

ear"ier *ranted b a Ma*istrate under Section /1E !ode of !rimina" 'rocedure wou"d not be*ranted under the +er $ct itse"f. 4his bein* the -osition2 the $ct cannot be he"d to be

unconstitutiona"

Mus"im 9omen 'rotection of Ri*hts on Di+orce% $ct2 /,C !entra" $ct 1E of /,C%((

Sections &/%a% and 0((Mus"im husband is "iab"e to J make reasonab"e and fair -ro+ision for

the future of the di+orced wife which inc"udes her maintenance e+en beond the Iddat

-eriod((Such -ro+ision has to be made within the -eriod of Iddat itse"f.

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9hi"e u-ho"din* the +a"idit of the $ct2 the court cocludedthat:

7. A Mu!li' #u!bad i! liable to 'a8e "ea!oable ad *ai" %"o6i!io *o" t#e

*utu"e o* t#e di6o"ced (i*e (#ic# ob6iou!l$ iclude! #e" 'aiteace a! (ell. Such a

reasonable and fair provision extending beyond the iddat period must be made by the

husband within the iddat period in terms of Section 3(1(aof the !ct.

1. Liabi"it of Mus"im husband to his di+orced wife arisin* under Section &/%a%of

the $ct to -a maintenance is not confined to iddat -eriod.

&. $ di+orced Mus"im woman who has not remarried and who is not ab"e to

maintain herse"f after iddat -eriod can -roceed as -ro+ided under Section 0of the $ct a*ainst

her re"ati+es who are "iab"e to maintain her in -ro-ortion to the -ro-erties which the inherit

on her death accordin* to Mus"im "aw from such di+orced woman inc"udin* her chi"dren and

-arents. If an of the re"ati+es bein* unab"e to -a maintenance2 the Ma*istrate ma direct the

State 9akf Board estab"ished under the $ct to -a such maintenance.

0. 4he -ro+isions of the $ct do not offend $rtic"es /02 /Eand 1/of the !onstitution

of India.

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Bibliography

+aneem Fatima 4 Is"amic Law #udiciar; Dee- $nd Dee- 'ub"ication.

!quil !hmad- &.! $han;Mohammedan Law !entra" "aw $*enc.

5ther online resourses.

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