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Muslim Women’s Right To Seek Maintenance
Team SoOLEGAL 11 Jul 2024

Muslim Women’s Right To Seek Maintenance

The concept of maintenance as it pertains to Muslims is taken from Hindu law, which states that: "In all cases, provisions for food, clothing, residence education and medical treatment; in the cases of unmarried daughters, Also the reasonable expense of her marriage." Muslim law does not define maintenance legally. A divorced woman may be eligible to receive maintenance under the following rules.


1. Islamic personal law

2. The Code of Criminal Procedure, Section 125

3. The Muslim Women [Divorce Protection Act] of 1986

 

It is possible to examine the Muslim maintenance legislation from the perspective of those who are eligible for it, including:


1. Spouse

2. Offspring

3. Parents and grandparents

4. Additional relations

 

According to Islamic law, a wife's entitlement to maintenance from her husband is unalienable and comes from her standing. Even if the woman has other sources of income, the husband still has a duty to provide for her. Because the woman is regarded as the root [Asl] and the kid as the branch [Fara], the wife's claim for support precedes the claims of small children, a wife can only get maintenance from her husband as long as their marriage is valid. Maintenance is not due if the marriage is invalid and irregular. Under CrPC Section 125, a woman also has the right to maintenance. The code provides for prompt and urgent assistance without addressing the issue of personal law entitlement.

 

A divorced wife may only make maintenance claims against her ex-husband under Muslim personal law during the time that she observes iddat. The husband is solely liable for the duration of the iddat. Muslim women practice the Arabic term "iddah" or "iddat," which means "period of waiting." Before she may legitimately be married again, a Muslim woman must observe this time of chastity following the dissolution of her marriage due to her husband's death or divorce. The purpose of watching the iddat period is to confirm the presence of paternity and determine if the lady is pregnant.

 

If the code obtains evidence of the negligence of the person with adequate means who is refusing to support, a Judicial Magistrate First Class can order an individual to provide a monthly allowance for the maintenance of the following individuals:


1. A wife who is unable to provide for herself;

2. Legitimate or illegitimate minor child 

3. A legitimate or a major legitimate child who is physically impaired

4. A parent who is unable to support themselves 


The magistrate may set the monthly allowance at any amount. The court may also impose interim maintenance during the interim and the cost of the proceeding, up until the section 125 proceeding.

 

If a wife is living in adultery or refuses to remain with her husband for no valid reason, she is not entitled to support. She will not be eligible for such support if she marries again after the divorce date. A husband may request the revocation of any such maintenance order for any of these reasons. The wife is not eligible to get any maintenance if the husband and wife are living apart with their consent. The right of a Muslim woman to maintenance from her husband is likewise expanded under Section 125. A Muslim woman is entitled to support under Islamic law, but only during the time of her iddat.

 

However, Section 125 gives Muslim women access to its provisions, expanding their entitlement to maintenance through remarriage. Section 125 of the Code of Criminal Procedure governs maintenance. "Divorced wife" who hasn't remarried is included in the definition of wife in it. Ali Hussain vs Bai Tahira The Supreme Court ruled in 1979 that a divorced Muslim woman is entitled to maintenance even if her personal laws had previously paid her the full amount owed. Section 125 is of a secular nature and is not governed by any personal laws. In Mohammed Ahmed Khan v. Shah Bano Begum (1985), it was decided that Muslim divorcees are subject to section 125 of the CrPC until they get married again.

The Supreme Court ruled in Mohammed Ahmed Khan v. Shah Bano Begum (1985) that section 125 and Muslim personal law are not inconsistent. The court noted that Muslim personal law restricts a husband's obligation to support a divorced wife for the duration of her iddat. The husband's obligation to provide for the divorced wife ends after the iddat period if she can support herself. If not, she can file for divorce under Section 125 of the Code of Criminal Procedure. This issue received a lot of attention and criticism from certain quarters who believed that it was unIslamic to provide maintenance after the iddat period, even in the CrPC.

 

The Supreme Court ruled on July 10, 2024, in the case of Mohd Abdul Samad v. The State of Telangana & Anr., Special Leave to Appeal (Crl), that a Muslim woman who has been divorced may file a maintenance claim against her former spouse in accordance with Section 125 of the Code of Criminal Procedure. The Muslim Women (Protection of Rights on Divorce) Act of 1986 grants Muslim women additional rights, according to the Court. A Muslim man's appeal challenging the order to provide his divorced wife with interim maintenance under Section 125 CrPC was denied by the Bench of Justices BV Nagarathna and Augustine George Masih.

 

According to the appellant, the following are the short facts that gave rise to the current appeal: the appellant was the spouse of Respondent No. 02 in this case. On November 15, 2012, both parties joined the marital consortium. Nevertheless, on April 9, 2016, Respondent No. 02 moved out of the married residence due to a breakdown in their relationship. Respondent No. 02 then filed FIR No. 578 of 2017 against the appellant for acts punishable by Sections 498A and 406 of the Indian Penal Code, 1860 (henceforth referred to as "IPC 1860"), starting criminal proceedings against the appellant. In response, on September 25, 2017, the appellant made a triple talaq and filed for divorce at the Quzath office. The divorce was finally granted ex parte, and on September 28, 2017, the divorce certificate was issued.

 

Furthermore, it is said that Respondent No. 02 allegedly rejected his request to provide INR 15,000/- (Rupees Fifteen Thousand only) in exchange for maintenance throughout the iddat time. Rather, she petitioned the Family Court for interim maintenance under Section 125(1) of the CrPC 1973, and it was granted. The Appellant filed a motion with the Telangana High Court seeking the quashing of the aforementioned Order, which ultimately resulted in the issuance of the contested order, which is now dated 13.12.2023.
The Appellant's main argument in petitioning this Court is that, with the passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth referred to as the “1986 Act”), the provisions of Section 125 of the CrPC 1973 are superseded. "). Moreover, it is argued that even if a "divorced Muslim woman" attempted to petition the court using the secular clause of Section 125 of CrPC 1973, it would not be maintainable; instead, an application under Section 5 of the 1986 Act would have to be filed, which is not the situation in this instance.

According to the petitioner's attorney, The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act ("Act") is a unique piece of beneficial legislation that offers far greater protection than what Section 125 CrPC allows. Section 3 of the Act addresses return of property, mehr, and dower in addition to maintenance. A "reasonable and fair" provision is also established under the Act for the lifetime of the divorced lady; however, Section 125 CrPC does not take this into consideration. Furthermore, under Section 125 CrPC, a divorced woman cannot seek for support if she has adequate resources; however, this is not the case under Section 3 of the Act.

 

(B) According to the ruling in Mohd Ahmed Khan v. Shah Bano Begum, a Muslim woman has the right to file a Section 125 CrPC petition regardless of her divorce status. The Act was passed and the Supreme Court's decision was codified in an attempt to overturn this decision. Reading the terms of the Act reveals that it was meant to supersede Section 125 CrPC, since it is a comprehensive law unto itself. Section 125 CrPC provides for Muslim women who have been abandoned or neglected, even though it offers provisions for "divorced" Muslim women.

According to the respondents' council, the Act only makes Muslim personal law more concrete. It increases a Muslim woman who has divorced her right to maintenance after the iddat period, but it does not remove the relief that she is entitled to under Section 125 CrPC, as the intentions underlying the two laws are distinct.


(B) The petitioner is misguided in relying on Section 5 of the Act since it only applies to applications submitted in accordance with Section 3 of the Act. The respondent-wife in this instance filed an application with the court according to Section 125 CrPC.

(C) The Act's Section 7 merely serves as a transitional clause. On the day the Act was enacted, any application that was pending under Section 125 CrPC was to be controlled by Section 3. That does not, however, imply that Section 125 CrPC petitions are no longer eligible to be submitted.
The petitioner gave a negative response when the Bench asked if she had made any payments to the respondent-wife throughout the iddat period. The Amicus explained that although the respondent-wife did not claim the draft of Rs. 15,000 that the petitioner had tendered during the iddat period.
Considering the aforementioned, the Bench held that it would have been reasonable had the petitioner provided for the wife throughout the iddat time; in such scenario, Section 127(3)(b) CrPC may have been applicable.

The following findings flow from the judges' concurring judgements:


a) All married women, including Muslim married women, are subject to Section 125 of the CrPC.
b) All divorced women who are not Muslims are subject to Section 125 of the CrPC.
c) With regard to Muslim women who have divorced, Section 125 of the CrPC is applicable to all such women, in addition to the remedies granted by the Special Marriage Act, for both marriages and divorces conducted under that legislation.

ii) The provisions of the 1986 Act and Section 125 of the CrPC apply to Muslim women who are married and divorced in accordance with Islamic law. Muslim women who have divorced have the choice to pursue redress under one of the two laws or under both of them. This is so because Section 125 of the CrPC is not superseded by the 1986 Act; rather, it is an addition to it.

 

iii) Any order issued under the provisions of the 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC if, as defined by the 1986 Act, a divorced Muslim woman also resorts to Section 125 of the CrPC. [This implies that the Magistrate would consider any support paid to the Muslim wife under her personal law when modifying the maintenance order in accordance with Section 127(3)(b)].

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