This article is written by Harshit Kumar. This is a detailed analysis of the case of Shabana Bano v. Imran Khan (2010). This case explains the significance of maintenance for a wife and a divorced wife. This article focuses on the maintenance rights of a divorced muslim wife under various provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Code of Criminal Procedure, 1973. It also discusses the jurisdiction of the family court under the Family Courts Act, 1984. This article gives a thorough review of the duty of the husband to provide financial support to her former wife. Further, this article discusses the cases the court relied on to come to the decision given in this case and, lastly, gives a detailed analysis of the judgement given by the Apex Court.     

Introduction

Maintenance can be understood as the means of providing or taking care of the eligible members, with the sources through which they can maintain themselves, fulfil their basic needs and necessities, and live their lives with dignity. These basic needs include food, accommodation, clothing, medical facilities, education, etc. Now the question that comes here is, who is actually eligible to get the maintenance and whose duty it is to provide maintenance?    

When seen through the eyes of different laws that exist in India, maintenance is a right that can be claimed by a wife from her husband, children from their father, aged parents from their children, and a divorced wife from her ex-husband to lead a proper and dignified life. There are several laws governing maintenance in India, which include the personal laws and the secular laws, namely, Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Muslim Women (Protection of Rights on Divorce) Act 1986, Parsi Marriage and Divorce Act 1936, Indian Divorce Act 1869, The Family Courts Act 1984, Special Marriage Act 1954, Code of Criminal Procedure 1973, Protection of Women from Domestic Violence Act 2005 and Welfare of Parents and Senior Citizen Act 2007.

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Under Muslim Law, it is the duty of the man to maintain his wife and his minor children, until and unless he is indigent, and other relatives from whom he can inherit if they are indigent. Under Muslim Law, ‘maintenance’ is known as ‘Nafqah’, which is its Arabic equivalent. This means “what a person spends over his family”. Basically, in a legal sense, maintenance includes three things, food, clothing and accommodation. A Muslim wife has the right to get maintenance under two circumstances,

  1. Owing to the status arising from a lawful marriage or
  2. Owing to a prenuptial agreement signed by the parties to the marriage or by the parents or guardians if any of the parties to the marriage or both are minor.

A divorced Muslim wife is entitled to get maintenance from her ex-husband during the iddat period. As per Muslim law, the divorced wife has no right to maintenance after the iddat period is over. But when the Code of Criminal Procedure 1973 comes into play, the conditions for maintenance changes. It can be understood in this way that a divorced Muslim wife can file for maintenance either under Muslim personal laws or under Section 125 of the Code of Criminal Procedure, 1973 under which she can get maintenance beyond the period of iddat, provided she has not married any other person.

It is crucial to observe that the rules of personal law on maintenance and rules of secular law on maintenance are in conflict with each other. In any such conflict, the personal law has always prevailed. However, with time, there has been an increased understanding of the requirement of social justice, which has led to legislative changes aiming to bring personal laws in alignment with fundamental constitutional values. Thus, there has been a surge in judicial interpretation and activism with an objective to ensure that there is no unduly restriction on the maintenance right of a divorced Muslim woman because of some discriminatory practices and obsolete legislative provisions. 

The case of Shabana Bano v. Imran Khan (2010) is one such interpretation in which the Apex Court considered the provision of Section 125 of the Code of Criminal Procedure 1973 over personal law. In this case, the Apex Court ruled that 

“The award of maintenance under Section 125 will not be restricted to iddat period, but until she remarries.”      

What brought the Court to this decision will be discussed further in detail.      

Facts of Shabana Bano vs. Imran Khan (2010) 

Shabana Bano, the appellant, was married to Imran Khan, the respondent, as per Muslim rites, on 26/11/2001 at Gwalior. The couple were given some household tools at the time of marriage, as per the appellant. But still the respondent and his family were continuously treating her cruelly and were demanding more dowry. The appellant got pregnant after some time and then was taken to her parent’s house by her husband, the respondent. There, the respondent threatened the appellant, saying if her parents did not fulfil his dowry demand, then he would not take her back to her matrimonial house, even after the child was born. The appellant delivered her child at her parental home. She observed that the respondent was ignoring his duties towards her and their child and did not take her back to her matrimonial house. Therefore, she filed the case demanding maintenance under Section 125 of the Code of Criminal Procedure in the Gwalior Family Court. The appellant claimed that the respondent is earning the amount Rs. 12000/- from a private job. She claimed an amount of Rs. 3000/- per month as maintenance because she was not able to maintain herself and her child. 

When the respondent was notified of it through a notice, he denied all her claims under Section 125 of the Code of Criminal Procedure 1973, except the fact about his and the appellant’s marriage. He brought up preliminary objections stating that the appellant was divorced already on 20/08/2004 as per the Muslim Law. Therefore, as per Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the appellant has no right to claim or receive maintenance after the period of iddat is over. He further contended that the appellant was earning an amount of Rs. 6000/- by taking private tuitions, and she was not dependent on his income. Furthermore, the appellant left the in-laws’ house at her own wish, and she also took all her jewellery and cash worth Rs. 1000/- with her. She was served a notice to return to her in-law’s house, but she didn’t return. Hence, she was not entitled to claim for maintenance. 

After hearing all the contents from the parties, the Family Court partially granted the appellant’s claims and ruled that, 

  • The appellant will be receiving an amount of Rs. 2000 from the respondent every month from the date of institution of the petition, 26/04/2004, to the date of divorce, 20/08/2004, and thereafter from 20/08/2004 to the iddat period. 
  • The respondent will be bearing the cost of the petition of the appellant.

However, the Court observed that the maintenance amount was denied, which made the appellant approach the High Court of Madhya Pradesh, Gwalior Bench, filing the Criminal Revision. The Criminal Revision was disposed of and the decision of the Family Court was upheld on 26/09/2008, and the Revision filed by the appellant was dismissed. 

Aggrieved by this decision, the appellant approached the Supreme Court of India, filing a Special Leave Petition under Article 136 of the Constitution of India along with the other relief within it.

Issues raised in Shabana Bano vs. Imran Khan (2010)

The following issues were raised in this case:

  • Whether a divorced Muslim woman is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973, and if she is, then through which forum?
  • Whether Section 125 of the Code of Criminal Procedure 1973 is overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986, which excludes a divorced Muslim woman from demanding maintenance from her divorced Muslim husband after the iddat period?
  • Whether the Family Court, established under the Family Courts Act 1984 exclusively, has jurisdiction to adjudicate upon the applications of maintenance filed under Section 125 of the Code of Criminal Procedure 1973?
  • Whether it is unconstitutional for the Muslim Women (Protection of Rights on Divorce) Act 1986 to take away the rights of the divorced Muslim wife to claim maintenance from her divorced Muslim husband as per Section 125 of the Code of Criminal Procedure 1973?

Arguments of the parties

Appellant 

The learned counsel for the appellant questioned the dismissal of the Criminal Revision filed by the appellant, contending that the learned Single Judge Bench of the High Court of Madhya Pradesh had made a grave error by dismissing the Criminal Revision filed by the appellant because of misinterpretation of the law, on the ground that no claim for maintenance is maintainable which is brought by a Muslim woman, after her divorce, under Section 125 of the Code of Criminal Procedure 1973. The counsel for the appellant further questioned the learned Single Judge’s understanding or interpretation of the law, contending that the dismissal of the Criminal Revision was based on the incorrect reasoning or misunderstanding of the law related to the maintenance claims under Section 125 of the Code of Criminal Procedure 1973. Furthermore, the appellant contended that the two Courts, the Family Court and the High Court of Madhya Pradesh, completely overlooked the provisions of Section 7(1)(f) of the Family Courts Act, 1984 (hereinafter as ‘Family Act’).    

Respondent  

The learned counsel for the respondent contended that the decision taken by the learned Single Judge Bench of the High Court of Madhya Pradesh was legally sound and free of any misinterpretation of the law, and the decision was relevant. He further contended that there stands no grounds for challenging the decision of the dismissal of the Criminal Revision made by the Single Judge Bench of the High Court of Madhya Pradesh. Furthermore, it was contended that the appeal brought by the appellant lacks legally valid and factual arguments and deserves to be dismissed. 

Laws involved in Shabana Bano vs. Imran Khan (2010)

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

The Muslim Women (Protection of Rights on Divorce) Act 1986 (hereinafter as ‘the Muslim Act’) is a result of the ruling given by the Apex Court in the landmark judgement of Mohd. Ahmed Khan v. Shah Bano Begum (1985), in which the Apex Court ruled that a divorced Muslim husband is under an obligation to pay maintenance to his former wife under Section 125 of the Code of Criminal Procedure 1973. This Act protects the rights of divorced Muslim women to get proper and fair maintenance from their former husbands. The Act evolved after another judicial interpretation by the Apex Court in the case of Danial Latifi & Anr. v. Union of India (2001), which resulted in the extension of the period of paying maintenance till the divorced Muslim wife remarries (before this, it was till the iddat period), upholding the application of Section 125 of the Code of Criminal Procedure 1973.

In the present case of Shabana Bano v. Imran Khan (2010), the Apex Court referred to some important Sections from this Act to discuss the important issues raised, as listed below:

  • The Court discussed Section 4 (Order for payment of maintenance), which provides that,
    • Regardless of what is contained in the Act in any previous provisions or under any existing law, if a Magistrate is satisfied by the fact that the divorced Muslim wife has not remarried, and after the iddat period, she is unable to maintain herself, he may pass an order Directing her relatives to pay her maintenance up to the amount that he thinks shall be proper for her to maintain herself. These relatives are those who will be inheriting the wife’s property after her death. The maintenance amount shall be determined, keeping in mind the lifestyle she enjoyed during her marriage. It shall be proportional to the right those relatives will inherit from her property. The payment time frame shall be decided by the magistrate.
    • If the divorced Muslim wife has children, then the magistrate can order her children to pay her maintenance, and if they cannot pay her maintenance, then her parents will be ordered to pay her maintenance.   
    • Further, if any of the parents are not capable enough to give his or her part of maintenance to the divorced woman, and they provide proof showing his or her inability to maintain the divorced woman, then the magistrate can order any of her relatives, who are capable, to pay her maintenance.
    • However, if the divorced woman is unable to maintain herself and has no such relatives, as mentioned in the above three points, or even if she has, they are not capable enough to pay her maintenance, then the magistrate can pass an order directing the State Wakf Board, that is established under Section 9 or the Wakf Act 1995, or established through any other Act that is existing in the State, to pay her maintenance for the period determined by him. 
  • The Court then discussed Section 5 (Option to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure 1973), which provides that if the divorced Muslim wife and husband, on the first day of the hearing, declares through an affidavit or any other written declaration, either jointly or separately, that want to be governed under the provisions of Sections 125 to 128 of the Code of Criminal Procedure 1973 and files in the Court then the magistrate shall dispose of such declaration accordingly. The date of the first hearing here means the date fixed in the summon for the attendance of the respondent to the application.
  • The Court lastly referred to Section 7 (Transitional Provisions), which provides that if any application by the divorced Muslim woman is pending before the magistrate and that application is under Section 125 or Section 127 of the Code of Criminal Procedure 1973, then irrespective of anything written in the Code and provided under Section 5 of this Act, the application will be disposed of as per the provisions of the Muslim Act.

Family Courts Act, 1984

The Family Courts Act 1984 was enacted to foster conciliation and ensure speedy resolution of marriage and family matters. This Act provides for the establishment of Family Courts in different cities or towns, with the population exceeding one million or where the government thinks fit to be established. Under this Act, civil matters like matrimonial issues, maintenance, child custody and legitimacy can be dealt with by the Courts established under this Act. The aim of this Act is to resolve the issues through mediation, conciliation or negotiation and avoid any long and technical litigation process. 

  • The Court referred to Section 7, which explains the jurisdiction. It provides that,
    • In accordance with the other provisions of this Act, the Family Court has and can exercise the jurisdiction that a District Court or any subordinate Civil Court exercises, that is established under any other law but deals with the cases that are listed under this Act; or     
    • The Family Court can be deemed as the District Court or the subordinate Civil Court to practise such jurisdiction, where the jurisdiction of the Family Court extends. 
  • The Court further referred to clause (f) of Section 7(1), which provides that the Family Court holds the jurisdiction to see the cases related to maintenance.
  • The Court also referred to Section 20, which explains the overriding effect of this Act over any other existing Act. It provides that this Act will supersede any other legislation which is in conflict with it or which gains power through other existing legislations. 

Section 125 of the Code of Criminal Procedure

The Code of Criminal Procedure 1973 is a primary piece of legislation providing the procedure for enforcing substantive criminal law in India. Section 125 under this Code is a social justice legislation with an objective to provide maintenance to the wife, children and parents who are not capable enough of maintaining themselves. Although this Section exists in criminal law legislation, the proceedings under this Section are of civil nature.

The main focus in this case is the maintenance of the wife under Section 125. So, a wife under Section 125 (1)(a) is entitled to get maintenance from her husband if she is not able to maintain herself, which is ordered by a first-class Magistrate upon the proof that she has been neglected or refused to be maintained by her husband. The amount of maintenance is decided by the Magistrate.

As per the second proviso of Section 125(1), the husband has to pay the amount of the monthly allowance for interim maintenance of the wife during the time the maintenance proceeding is pending in the Court, on the order of the Magistrate and the amount is also decided by the magistrate.    

Now, the question that comes here is whether this provision is restricted to a legally married wife. 

Explanation (b) of Section 125(1) expressly provides that 

“wife includes the woman who is divorced or who has obtained a divorce from her husband and has not remarried.” 

So, the answer to the above question is that the wife is a legally wedded wife and also a divorced woman who had not remarried after her divorce. Therefore, a divorced woman is also entitled to maintenance from her former husband if she is not able to maintain herself.  

Under Muslim Law, the period of maintenance of a divorced Muslim wife is restricted to the period of iddat, but this rule has been challenged. It has often been observed by the Apex Court that the term “wife” under Explanation (b) of Section 125 includes a divorced wife; therefore, a divorced Mohammedan wife can bring a claim for maintenance under Section 125 of the Code of Criminal Procedure 1973, from her former husband so as long as she does not remarry. 

Relevant judgements discussed in Shabana Bano vs. Imran Khan (2010)

While discussing the issues, the Court referred to the case of Danial Latifi & Anr. v. Union of India (2001). The case challenged the Muslim Women (Protection of Rights on Divorce) Act 1986, contending that the Act is unconstitutional and violated Articles 14, 15 and 21 of the Constitution. They also contended that the enactment was to undo the judgement given by the Apex Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985), in which the Court ruled that a divorced Muslim woman can claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973. But all the contentions from the petitioner (Danial Latifi) were dismissed, and the Court upheld the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986, adding that it does not violate Articles 14, 15 and 21 of the Constitution.     

The Court in the present case focused on paragraphs 30, 31 and 32 of the Danial Latifi & Anr v. Union of India (2001), which expressly established the right of the appellant to claim maintenance under Section 125 of Code of Criminal Procedure 1973. 

The Court observed the wording noted by the Constitutional Bench, which goes as follows: 

  • The Court emphasised the comparison of the provisions from the Muslim Women (Protection of Rights on Divorce) Act 1986) with Section 125 of the Code of Criminal Procedure 1973 to understand the purpose, scope and objective of Section 125 to prevent vagracy by compelling those (here the focus is on the husband) who can support those who cannot support themselves (who have legitimate right to make such claim for support, for example, wife, children and parents, but for this case the focus was wife). 
  • Further, the Court rejected the claim made by the petitioner (Danial Latifi) that they were being deprived of their rights because of the schemes provided in the Muslim Women (Protection of Rights on Divorce) Act 1986 because, in their opinion, these schemes were more beneficial than the scheme provided under Code of Criminal Procedure 1973. The purpose of Section 125, as stated above, is fulfilled. Therefore, the claim made by the petitioner was not acceptable in any way.
  • The Court further observed that the magistrate holds the authority to decide the amount and other required thighs related to the maintenance, and whatever ruling a Magistrate can give under Section 125 of the Code of Criminal Procedure 1973, and he can give such ruling under the Muslim Women (Protection of Rights on Divorce) Act 1986 as well. Therefore, the Muslim Women (Protection of Rights on Divorce) Act 1986 was not held unconstitutional.
  • The Court then observed that the Muslim Women (Protection of Rights on Divorce) Act 1986 is applicable to the divorced Muslim women case, and this was pronounced by this Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) (hereinafter as ‘Shah Bano’s case’). The declaration under Shah Bano’s case was made considering the Holy Quran and other commentaries and important texts.
  • When that decision was made, the Constitutional Bench at that time analysed the Suras 241-242 Chapter II of the Holy Quran, and therefore, in the case of Danial Latifi & Anr. v. Union of India (2001), the Court humbly abided by the contents of the Holy Quran and concluded that the Muslim Women (Protection of Rights after Divorce) Act 1986 abides by the rulings of Shah Bano’s case, and is not deviating from the personal laws. 

Therefore, it can be observed that the analysis provided by the Court in the above case under paragraphs 30, 31 and 32 provides a proper understanding of the purpose, scope and objective of Section 125 of the Code of Criminal Procedure 1973 and the Muslim Women (Protection of Rights on Divorce) Act 1986. The Court’s observation showed that the Muslim Women (Protection of Rights on Divorce) Act 1986 is not unconstitutional because it is in line with the observations made in Shah Bano’s case. It does not deviate from the personal laws, at the same time maintaining the connection with the secular law (Section 125), which guarantees proper maintenance rights to the divorced Muslim woman.   

Another case that the Court referred to was the case of Iqbal Bano v. State of UP and Anr (2007). This case was challenging the divorced wife’s demand for maintenance after the payment of mehr and the completion of the iddat period. As per the appellant’s former husband, the wife was divorced long back through triple talaq, and she was paid mehr, and her iddat period was over. Therefore, she was not entitled to any maintenance. Also, he had contracted a second marriage. The Court dismissed these contentions and ruled that a divorced Muslim wife is entitled to get maintenance from her former husband, even after she is paid mehr and the iddat period is over, if she is not able to maintain herself, and even until she remarries. Mere payment of mehr and completion of the iddat period does not free him from his obligation to maintain his former wife. This case also upheld the rights of a divorced Muslim woman to claim maintenance from her former husband under Section 125 of the Code of Criminal Procedure 1973.

The Court, in the present case, referred to paragraph 10 of Iqbal Bano v. State of UP and Anr (2007). It was observed that,

  • The nature of the proceedings under Section 125 of the Code of Criminal Procedure 1973 is civil in nature. So, where a Court finds that there is a divorced woman involved in the petition, then it is the discretion of the Court to take that case under the Muslim Women (Protection of Rights after Divorce) Act 1986, considering the beneficial nature of that legislation. The petitions under Section 125 of the Code of Criminal Procedure and claims made under the Muslim Women (Protection of Rights after Divorce) Act 1986 are tried by the same Court. 
  • The Court took the reference of the case of Vijay Kumar Prasad v. State of Bihar (2004) to conclude that a petition under Section 125 of the Code of Criminal Procedure is of civil nature and further referred to a part of this case, which explained that the difference between Section 488 of the old Code of Criminal Procedure 1898 and Section 126 of the new Code of Criminal Procedure 1973 is that Section 126 has broadened the geographical scope of maintenance proceedings to include the place where the wife is possibly residing. 

Therefore, it can be observed from this decision that when any maintenance case of a divorced Muslim woman is taken, then it is the discretion of the Court to take it under the Muslim Women (Protection of Rights on Divorce) Act 1986, and this is based on the beneficial nature of the legislation.    

Judgement in Shabana Bano vs. Imran Khan (2010)

Ratio of the judgement

After reviewing the case in detail and discussing all the relevant Sections from the Muslim Women (Protection of Rights after Divorce) Act 1986 and the Code of Criminal Procedure 1973, the Court ruled that:

  • On the very first issue raised in this case, the Court observed that a divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure. The Court focused on the significance of vagrancy by compelling those who can maintain those who cannot maintain themselves (who have a legitimate right to make such a claim for support) and thus upheld the right of the appellant to claim maintenance under Section 125 of the Code of Criminal Procedure 1973. 
  • On the second issue, the Court observed that Section 125 of the Code of Criminal Procedure 1973 is not overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. A divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband even after the iddat period is over or beyond the iddat period under Section 125 of the Code of Criminal Procedure 1973, ensuring her monetary support to maintain herself even after the divorce.    
  • On the third issue, the Court observed that the Family Court established under the Family Courts Act 1984 has exclusive jurisdiction to adjudicate the applications of maintenance filed by a divorced Muslim wife under Section 125 of the Code of Criminal Procedure 1973. The Apex Court also focused on the fact that the petitions brought under the Muslim Women (Protection of Rights on Divorce) Act 1986 were also tried by the family court. Taking into consideration the observation of the Court in the first issue and this issue it can be observed that a divorced Muslim wife can claim maintenance under Section 125 of the Code of Criminal Procedure 1973 through the Family Court established under the Family Courts Act 1984, therefore, the forum through the divorced Muslim wife claim the maintenance is the Family Court.
  • On the fourth and last issue, the Court upheld the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986, observing that this Act does not take away the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973. This ruling upheld the legal validity of the provisions related to maintenance enshrined under the Muslim Women (Protection of Rights on Divorce) Act 1986.    

Rationale behind the judgement

  • The observation of the Court in the first issue, that a divorced Muslim wife is entitled to get maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure is in line with the decision taken by the Apex Court in the case of Danial Latifi & Anr v. Union of India (2001) and Iqbal Bano v. State of UP and Anr (2007), in which it was ruled that a divorced Muslim wife can claim maintenance under Section 125 of the Code of Criminal Procedure 1973, and she is entitled to get maintenance beyond the iddat period and until she remarries.
  • The observation made by the Court in the second issue that Section 125 of the Code of Criminal Procedure 1973 is not overridden by the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 is again in line with the observation made in the case of Danial Latifi & Anr v. Union of India (2001).
  • The observation made in the third issue that the Family Court established under the Family Courts Act 1984 has exclusive jurisdiction to adjudicate the applications of maintenance filed by a divorced Muslim wife under Section 125 of the Code of Criminal Procedure 1973 is in line with Section 7(1)(f) of the Family Courts Act 1984, which expressly gives power to the Family Court to practise jurisdiction on maintenance cases.
  • The observation made in the last and final issue upholding the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986 is that this Act does not take away the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973 is in line with the observation made by the Apex Court in the case of Danial Latifi & Anr v. Union of India (2001), in which the Court upheld the Constitutionality of the Act and observed that it was not in violation of Articles 14, 15 and 21 of the Constitution of India.  

Analysis of Shabana Bano vs. Imran Khan (2010) 

In the case of Shabana Bano v. Imran Khan (2010), the Apex Court focused on various important aspects, such as,

  • Entitlement to maintenance under Section 125 of the Code of Criminal Procedure 1973: This whole case was around the maintenance of a divorced Muslim wife and her right to claim maintenance from her divorced Muslim husband. Highlighting the need of a divorced wife, who is not able to maintain herself after the divorce, to claim maintenance from her former husband, the Court upheld the important role of Section 125 in getting a divorced wife financial support from her former husband, irrespective of their religion and what personal laws are existing. It was made clear that irrespective of what religion is practised by the wife; she has the right to claim maintenance under Section 125 because it is a secular law and available for all. The main focus of this case was on the right of a divorced Muslim wife to claim maintenance from her divorced Muslim husband, and it was decided that any divorced Muslim woman held this right.
  • Conflict between the Muslim personal law and Section 125 of the Code of Criminal Procedure 1973: This case saw a major conflict between the provisions of Muslim personal laws and Section 125. Where the Muslim personal law restricted the payment of the maintenance till the iddat period, there the Court increased the period of maintenance beyond the iddat period.
  • The Family Court’s jurisdiction:  This case focused on the jurisdiction of the Family Courts in the maintenance matters, and the Court upheld its jurisdiction in any case of maintenance brought not only under Muslim personal laws but also in the case brought under Section 125 of the code of Criminal Procedure 1973. 
  • The matter of constitutionality of Muslim Women (Protection of Rights on Divorce) Act 1986: In this case, the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986 was questioned, but the Court upheld its constitutionality but also suggested the required changes in the provisions of the personal law so that they are in line with the constitutional values (Equality and no discrimination on the basis of religion).         

Conclusion 

The case of Shabana Bano v. Imran Khan (2010) was a very important step in safeguarding the rights of a divorced Muslim woman from her former husband. In this case, the rights of a divorced Muslim woman to claim maintenance from her divorced Muslim husband under Section 125 of the Code of Criminal Procedure 1973 was maintained by the Apex Court and the period of payment of maintenance was declared to be beyond the iddat period until the divorced wife remarries. This case also focused on the conflict between Muslim personal law and secular legislation (i.e. Section 125 of the Code of Criminal Procedure 1973). This showed the need for legal reforms in the personal laws so that they adhere to the Constitution and maintain equality and social justice. This case also discussed the jurisdiction of the Family Court in the maintenance matter, which can be seen as a positive step taken to ensure that these types of matters are taken sensitively and solved through mediation and conciliation. Lastly, the case highlighted the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act 1986. It focused on the need for legislative reforms so that the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 align with the constitutional values.

Frequently Asked Questions (FAQs) 

What is iddat, and how long is the period that a divorced Muslim woman has to observe after divorce?

Iddat, under Islamic law, is a waiting period which every Muslim woman has to observe either after her divorce from her husband or after the death of her husband. This period is a restrictive period in which the woman is not allowed to remarry or go into a new relationship with any other man. The basic purpose of iddat is to avoid any confusion with the paternity of the child, in case the woman was pregnant during the time she was divorced or her husband died.

As per Section 2(b) of the Muslim Women (Protection of Rights on Divorce) Act 1986, the period of iddat is as follows:

  1. Three menstrual courses after the divorce date, if she was menstruating during the divorce; or
  2. Three lunar months after the divorce, if she was not menstruating during the divorce; or
  3. If she was pregnant on the date of divorce, the time till the child’s birth or the termination of her pregnancy, whichever is earlier.

What is mehr?

Mehr in Islamic marriage is a mandatory payment made by the groom to the bride, either in the form of money or possession of property. This is an essential part of the marriage contract. The amount is decided by the groom and the bride or the representatives of either party before the solemnization of the marriage.

Can a husband claim maintenance from his wife in India?

Yes, a husband can claim maintenance from her wife if he is not able to maintain himself because of some physical condition or mental condition under Section 24 of the Hindu Marriage Act 1955. In addition, under Section 25 of the Hindu Marriage Act 1955, the husband is entitled to alimony and maintenance from the wife based on a few factors like income and property. The husband is required to prove his inability to earn because of some physical or mental condition.

What impact does the conflict between secular laws and personal laws have on maintenance rights in India?

In the matter of maintenance, historically, personal laws have always prevailed over secular laws, But with changing times keeping the importance of social justice in mind, various legislative reforms have come which are making personal laws aligned with Constitutional values, ensuring the right to fair maintenance to every individual, including Muslim women.

What excludes a divorced wife from getting maintenance as mentioned under the Code of Criminal Procedure 1973?

As per Section 125(4) of the Code of Criminal Procedure 1973, if a wife is living in adultery or refuses to stay with her husband without any proper reason or if the husband and wife are living separately, mutually, then this excludes a wife from getting any maintenance from her husband.

References

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