This article is written by Prashant Prasad. This article tries to achieve a detailed analysis of maintenance granted under Muslim law and examines the landmark cases associated with it. Furthermore, for a deeper understanding, this article delves into a comparative analysis of maintenance under Muslim law and Hindu law. The article goes on to highlight the contemporary issues and challenges faced by divorced Muslim women with respect to maintenance, along with the possible remedies to address such issues. Additionally, the article discusses the Uniform Civil Code (UCC) and its impact on maintenance law. 

Introduction

Under Muslim law, the term ‘maintenance’ is known as nafaqah, which translates to what a man spends on his family. Maintenance refers to the financial support provided by a person who is legally responsible for covering the essential needs of a family member, such as food, clothing, dwelling, and anything else that is necessary for their livelihood. There are different laws on the basis of which the right to maintenance is ascertained. The right to maintenance is available under various personal laws, such as Hindu, Muslim, Christian, and Parsi personal laws. The main aim behind providing maintenance is to protect the rights of the dependents and to give them a dignified life, which they are entitled to, even in case of dissolution of a relationship due to whatever reasons. Maintenance under Muslim law is governed by Muslim personal laws and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Further, it must be noted that, apart from these Muslim laws, Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Earlier- Section 125 of the Criminal Procedure Code, 1973) also applies to Muslim women

Under Muslim law, the husband’s obligation to provide maintenance is not only limited to the wife but also extends to the children, parents, grandparents, and any other close relatives who are associated by blood. However, it is pertinent to note that the amount paid for maintenance depends on the financial capacity of the person who is paying it. The obligation to pay maintenance can be traced back to Islamic laws, which prescribe the guidelines and principles on the basis of which maintenance can be paid. The amount of maintenance can be enforced through a court’s intervention and failure to provide maintenance can result in legal consequences and punishments. However, the amount of maintenance can be changed on the basis of changes in circumstances, the financial status of the dependents, and the person paying the compensation. Let us explore these provisions in detail.

Historical background that led to evolution of maintenance under Muslim Law

Under Muslim law the people show their belief in the divine god named Allah, his teachings and scripture are mentioned in the holy book Quran, which is majorly followed by the peoples of the Islamic religion. The concept of maintenance has been raised from the various sources of Muslim law, which are as follows –

• Holy Quran – The primary source of the Muslim law is the holy book known as Quran. This book contains the teachings (which are for the benefit of humans and mankind) of God given to the Prophet Mohammed, that were communicated to him by Gabriel (the archangel who acts as an intermediate between God and humans).
• Ijma – Ijma under Muslim law is considered a legal decision that was given at the time when there were no laws present. The person who used to make decisions at that particular time is known to be mujahids, who used to act as jurists to make decisions on any issue.
• Sunnat – The tradition, procedure, and practices of the Prophet Muhammad are known to be Sunnat.          

All these sources of Muslim law form the basis through which the concept of maintenance has been aroused. These promote and preach the teachings of Allah and all these teachings and various sources led to the foundation on the basis of which the law of maintenance has developed.  

Principles involved in granting maintenance under Muslim Law

The principles involved while granting maintenance under Muslim law vary slightly depending on the jurisdiction. However, the principles that generally govern maintenance under Muslim law are as follows –

• Ensuring a decent standard of living – Maintenance involves the basic elements, such as food, clothing, shelter, and other essentials that are required for the existence of human beings. The person who is responsible for providing these amenities must fulfil the needs of the dependents in order to provide them with a life of dignity and comfort.  
• Duty to support – Muslim law imposes a duty on the male member of the family to provide financial and other required support to his wife and children, as well as other close relatives, depending on the situation. This duty to provide support has been derived from the prophetic tradition, which encompasses the importance of providing basic needs to the dependents of the family.
• Just and equitable provisions regarding maintenance – The Muslim law stresses fairness and equality amongst the parties while deciding on the quantum of maintenance. The financial situation of the person who is under obligation to pay the maintenance and the needs of the dependents are taken into consideration and accordingly, the quantum of maintenance is decided.
• Mutual duties – The amount of maintenance is a mutual arrangement amongst the family.  The male member of the family has been provided with the primary responsibility of financial support and this duty is balanced with the other rights and obligations of the people who are dependent on them.
• Duration of maintenance – The duration of maintenance under Muslim law lasts as long as the dependents are in need of such maintenance. It usually comes to an end when an event such as death, remarriage, etc. takes place. The duration of maintenance may vary based on the situation, such as the age of the children, the financial position of the party who is under obligation to pay, and anything else that may affect the payment of maintenance.
• Flexibility – The order of maintenance under Muslim law is not permanent and may change according to changes in circumstances. For instance, if the financial situation of the party who is under obligation to pay maintenance changes significantly or the person who is dependent needs an increase in the amount of maintenance, then under such a situation, the court may order any alteration in the existing maintenance order.  

Conditions required to claim maintenance

There must exist certain prerequisite conditions on the basis of which maintenance can be claimed. The various conditions are as follows:

• Inability to maintain oneself – The person claiming maintenance should show that they are incapable of maintaining themselves financially. The inability to maintain oneself can arise due to many reasons, such as old age, disease, responsibilities, or any other reason that justifies their inability.
• Neglect on the part of a person under obligation – The person who is legally entitled to maintain has failed or neglected to maintain the person claiming maintenance. The neglect or failure to perform the obligation must have caused some difficulties for the party who is dependent.
• Person must be related – The person who is claiming the maintenance and the person from whom maintenance is sought must be related to each other through some relationship. Such a relationship can either be a parent-child relationship, a husband-wife relationship, or any other close relative.
• Obligation to maintain – The obligation of a person to provide maintenance must be recognized by the law. Therefore, if the law specifically imposes an obligation to provide maintenance, then that needs to be recognized as a legally valid obligation.

On the fulfilment of the above conditions, maintenance can be claimed by a person. The claim can be made during the subsistence of the marriage, during the pendency of any matrimonial suit, or after obtaining the decree of divorce by the court of law.

Quantum of maintenance

The quantum of maintenance is not prescribed under any personal law. It is the discretion of the court to fix the amount of maintenance based on the nature and circumstances of the case. The primary factor that is considered by the court while deciding the quantum of maintenance is the financial position of the husband and wife and other necessary factors, such as standard of living, age, health of the claimant, duration of the marriage, etc.

Beneficiaries of maintenance under Muslim Law

Under Muslim law, the following persons can claim maintenance –

Wife 

The men are liable to maintain their wives during the duration of marriage and even after the dissolution of the marriage. Therefore, it is the obligation of the husband to provide maintenance to his wife, irrespective of whether the financial condition of the husband is good or bad.

Children

The father is under obligation to maintain his children until they attain the age of majority, under Muslim law. However, once a male child attains the age of majority, the obligation to maintain him ends. In the case of a female child, the father is under an obligation to maintain her until the date of her marriage. However, it is pertinent to note that the father has no obligation to maintain an illegitimate child.

Under Hanafi law, if the father is poor and the mother is rich, then it is the obligation of the mother to maintain the child. However, the mother can recover the amount when the husband is able to pay.  

Under Shefai law, if the father is poor and the mother is rich, then there is no obligation on the mother to maintain the child. In such a situation, the grandfather is obliged to maintain the child.  

Parents and grandparents 

If there exist circumstances in which the parents or grandparents of a person are unable to maintain themselves, then it is the obligation of that person to maintain his/her parents and grandparents. The parents occupy the next position in the right to be maintained, after the child. Among parents, the mother is given preference over the father with respect to the payment of maintenance. It is immaterial whether the child is male or female, adult or minor. If they have sufficient property, they are responsible for supplying maintenance to their parents and grandparents. 

Other relatives

Under certain conditions, if the other relatives are unable to maintain themselves, they may be entitled to maintenance if they do not have sufficient means of income and are hence in need of it.  

Conditions when the wife and the others are not entitled to claim maintenance

The liability to pay maintenance to the dependents can cease to exist under certain situations. The various circumstances in which the dependents are not entitled to claim maintenance are as follows –

• Wife – There are certain instances in which the wife is not entitled to receive maintenance- such as when the wife has not attained the age of puberty, when the wife abandons her husband without any reasonable cause or in the absence of any sufficient reason, or when the wife fails to comply with the reasonable requests of the husband. 
• Children – Under Muslim law, the obligation to maintain children is until the period the child attains the age of majority in the case of a male child. Whereas, in the case of a female child the obligation to maintain her subsists till the date of her marriage. 

Once a male child attains the age of majority and a female child gets married then their right to claim maintenance terminates.

• Parents and grandparents –  The obligation to maintain parents and grandparents arises when there is an instance in which they are unable to maintain themselves. However, if the situation changes and there is a reasonable source with which they can maintain themselves then they might not be entitled to claim maintenance. 
• Other relatives – The obligation to pay maintenance is based on the familial bond and the payment of maintenance is voluntary rather than legal compulsion, in case they are unable to maintain themselves. Therefore, if the situation becomes favourable and they have some source of income then their right to claim maintenance terminates. 

Maintenance of wife under Muslim Law

Under Muslim law, the wife’s right to maintenance by her husband is an absolute right. Even if the wife has her own source of income, there is an obligation on the husband to maintain her. A claim of maintenance by the wife is preferred over that of the children because, under Muslim law, the wife is considered to be the root, and the child is considered a branch.

The maintenance by the wife can be divided into 4 parts, which are as follows –

• Maintenance as an obligation of marriage
• Maintenance on the basis of pre-nuptial agreement.
• Maintenance can be claimed by the wife under Section 144 of BNSS (Earlier-Section 125 of CrPC).
• Maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986. 

Maintenance as an obligation of marriage

The husband is under an obligation to maintain his wife so long as she remains faithful to him and the orders made by the husband. However, a wife can seek maintenance even if she disobeys her husband in the following situation –

• If there exists a situation wherein the husband keeps a concubine (a woman with whom a man cohabits without being married).
• If the husband is guilty of committing cruelty towards the wife.
• If the marriage was not consummated, owing to any kind of disease or illness, malformation, absence of husband without the prior permission of the wife, or if the husband has not attained the age of puberty.

Maintenance on the basis of pre-nuptial agreement

A prenuptial agreement is an agreement made before marriage between the couple regarding anything relating to assets, ownership, maintenance, etc. This agreement may establish the right over the property and can act as supporting evidence during the event of divorce or any other circumstance.

If the wife has laid down a condition, before entering into the contract of marriage under Muslim law, that under these circumstances she would be living separately and would be entitled to the maintenance, then maintenance will be paid according to such agreement. The condition can be anything, such as that the husband must not ill-treat her, must not get married to a second wife, must not keep a concubine, etc. If there has been a contravention of the conditions as made in the prenuptial agreement, then on the basis of this agreement, maintenance can be claimed by the wife. The wife is also entitled to a special allowance, known as kharcha-i-pandan, if stipulated in the prenuptial agreement.   

In the case of Muhammad Ali Akbar vs. Fatima Begum (1929), the parties were married on 27^th July 1919. On that day, the husband, apart from executing a deed of dower, also promised to pay his wife Rs. 25 per month, as kharcha-i-pandan. The couple lived together till May, 1921 and on account of differences and quarrels with her mother-in-law, the wife left the home of the husband and went to her parent’s home. Subsequently, there was a reconciliation among the parties in December 1921. However, this reconciliation did not last long, and again, she left in July, 1922.

A case was filed by Fatima Begum against her husband for the recovery of a certain sum of money as maintenance, known as kharcha-i-pandan. However, the claim of maintenance was rejected by the lower court on the ground that there was no obligation on the husband under the Mohammedan law if the wife refused to live with him without any lawful cause. The Court further stated that the main reason why the wife left home was on account of the difference with the husband’s mother, which cannot be regarded as a lawful cause.

An appeal was filed by the wife. There was no question raised regarding not allowing maintenance, but an appeal was preferred to recover the amount of kharcha-i-pandan, which was not paid for 3 years. Finally, the Court in this case directed that the allowance, named kharcha-i-pandan, must be paid by the husband in addition to the amount of maintenance.  

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

The Muslim Women (Protection of Rights on Divorce) Act, 1986, was enacted with the main purpose of safeguarding the rights of Muslim women, particularly those who have been divorced or have been separated from their husbands. The Act provides a mechanism for the payment of maintenance to such Muslim women. Furthermore, the Act makes sure that the amount of maintenance paid is fair and reasonable. 

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

The Muslim Women (Protection of Rights on Divorce) Act, 1986, was enacted because of the controversy related to the case of Mohammed Ahmed Khan vs. Shah Bano Begum (1985). The judgement delivered in this case was seen as an attack on Muslim personal law. A detailed analysis of the Shah Bano case would let us understand the need behind enacting this legislation.     

Mohammed Ahmed Khan vs. Shah Bano Begum (1985)

Facts of the case

In the present case, Mohammad Ahmed Khan married Shah Bano and the amount of mehar (amount payable by the husband to wife, which she would receive in case of divorce or his death) was fixed at Rs. 3000. Subsequently, 3 sons and 2 daughters were born out of wedlock. In the year 1978, the husband unilaterally divorced his wife by pronouncing “triple talaq,” known as talaq-ul-biddat. In accordance with Islamic law, the husband pays the decided amount of mehar to the wife, during the period of iddat (a period of three months after the divorce, in which Muslim women are not allowed to remarry).

Having been trashed out of her matrimonial home, the wife filed a petition under Section 125 of the CrPC (at present – Section 144 of the BNSS), seeking maintenance. The Judicial Magistrate ordered a maintenance of Rs. 25 per month. Dissatisfied with the amount of maintenance issued by the magistrate, the wife appealed to the Madhya Pradesh High Court in 1979. As a result, the amount of maintenance was increased to Rs. 179.20 per month.

Aggrieved by the decision of the Madhya Pradesh High Court, the husband filed a petition before the Supreme Court of India. It was contended by him that according to the provisions of Muslim personal law, the amount of maintenance should extend till the period of iddat only and not beyond that. Therefore, Section 125 of the CrPC (at present – Section 144 of the BNSS) must not be applicable in the present case. The two-judge bench, in this case, was of the opinion that the present judgments on this particular issue have not been accurately pronounced. Therefore, to decide on the matter, a five-judge bench of the Supreme Court was constituted.      

Issues of the case

The various issues that were considered by the court were as follows –

• Whether Section 125 of the CrPC (at present – Section 144 of BNSS) is a secular provision?
• Whether there is any conflict between the payment of maintenance under Section 125 of the CrPC (at present – Section 144 of BNSS) and the Muslim personal law?
• Can maintenance be paid to a Muslim wife beyond the period of iddat?

Judgement of the case

It was observed by the Supreme Court of India that Section 125 of the CrPC (at present – Section 144 of BNSS) is a secular provision and is applicable to the spouse, whether they are Hindu, Muslim, Christian, Parsi, or of any other religion. It was ruled that this provision is applicable to every person belonging to all religions and has no connection with the personal law of any religion. It was further stated by the Court that the obligation of the husband, under Muslim personal law, to support his divorced wife remains only till the period of iddat. However, under Section 125 of the CrPC (at present – Section 144 of the BNSS), there is no scenario as such in which the responsibility of the husband ceases to exist after a particular period. It was added by the Court that if the divorced wife is capable of maintaining herself, the duty of the husband to provide maintenance is concluded after the period of iddat ends. However, it was clarified by the court that if the divorced Muslim wife lacks the means to sustain and maintain herself, she has the complete right to seek relief under Section 125 of the CrPC (at present – Section 144 of BNSS). Therefore, the major point that was delivered by the court in this case was that the husband is obligated to maintain his divorced Muslim wife even after the period of iddat.    

Consequences of the judgement delivered in the Shah Bano case

After the judgement that was delivered in the case of Mohammed Ahmed Khan vs. Shah Bano Begum (1985), there was an uproar amongst the people. There was scandalous media coverage, and apart from that, a huge protest and counter-protest from different religious groups were seen. The judgement not only created differences among the different religions, but along with that, the division also arose among the different sects of Muslims. There were a few groups that supported the decision, such as liberal Muslims, Hindus, and feminists. However, there were some groups, such as conservative Muslims, who vehemently opposed the decision. They saw the judgement as an attack on their religion since their personal laws directed the payment of maintenance till the period of iddat, but the judgement directed the payment of maintenance beyond the period of iddat.     

Due to huge political pressure and the ongoing protest regarding the judgement that was delivered, the Government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. It actually seemed to reduce the protection granted to the women by the Shah Bano case. The Muslim Women (Protection of Rights on Divorce) Act, 1986 stated that the liability of the husband to pay maintenance should subsist only till the period of iddat, and if after that period she is not able to maintain herself, then the relatives who have inherited any property from her would pay the maintenance. Finally, the different issues and difficulties pertaining to the legislation were resolved in the case of Danial Latifi vs. Union of India (2001), as discussed later on in this article.   

Provisions related to maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986

Different provisions, such as Section 3, Section 4, and Section 5 of this Act, deal with the maintenance of the Muslim wife and children. 

Section 3

This Section discusses the mehar and other property of Muslim women to be given to her at the time of divorce. Under this Section, a divorced Muslim woman shall be entitled to the following –

• A reasonable and fair amount of maintenance must be paid to her by the former husband within the period of iddat.
• If a woman herself maintains the children that are born either before or after the marriage, then a reasonable and fair amount of maintenance must be paid by the former husband for the child. The maintenance must be paid for a period of two years from the date on which the child was born.
• The amount of mehar that was discussed previously must be paid to the wife at the time of marriage or any time after the marriage, in accordance with Muslim law.
• The properties that were given to her, either before or after the marriage, by relatives, the husband, friends, or any relative of the husband or his friends.

If there exists any situation wherein a reasonable and fair amount of maintenance or the amount of mehar, has not been paid or any other property that she is entitled to under this Section has not been delivered to her, she or any other person duly authorised by her can file an application before the Magistrate for an order of maintenance, mehar, or delivery of any other property, as the case may be. When an application is made by the divorced woman and the Magistrate is satisfied that –

• The husband has sufficient means of earning and has failed or neglected to make a reasonable and fair payment of maintenance towards the divorced wife and the children.
• The amount that was required to be paid as mehar and the other property that the divorced woman was entitled to receive were not transferred to her.  

Then, under such conditions, the Magistrate may make an order, within one month of the date of filing of the application, directing the former husband to pay a reasonable and fair amount of maintenance to the divorced woman. If any person against whom the order has been made, fails to comply with the order without any reasonable cause, then the Magistrate may issue a warrant for levying the amount of maintenance in accordance with the provisions of the CrPC (at present – BNSS). The person can even be sentenced to imprisonment for a term that may extend to one year or until payment of the amount.

Section 4   

Section 4 discusses the order for the payment of maintenance. It has been stated under this Section, that once a Magistrate is satisfied that the divorced woman has not remarried and is unable to maintain herself after the period of iddat, an order can be made directing relatives to pay maintenance. A relative can be a person who would be entitled to receive her property on her death in accordance with Muslim law. The amount of maintenance to be paid by the relatives must be fair and reasonable, catering to the needs of a divorced woman and the standard of life enjoyed by her before the marriage. However, the financial means of the relatives must also be taken into consideration. The maintenance would be paid by the relative, in the proportion to which they are entitled to inherit the property.

In case the divorced Muslim woman is unable to maintain herself and has no such relatives, or the relatives do not have enough means to pay maintenance, the Magistrate may, through an order, direct the State Wakf Board that is established under the Wakf Act, 1954 or any other law for the time being in force, to pay maintenance as determined by him.

Section 5

Section 5 of the Act discusses the amount of maintenance. This Section states that the determination of the amount of maintenance is at the discretion of the court. However, while doing so, the court shall consider various factors, such as the following –

• The status and position of the parties.
• Reasonable amount of maintenance that the claimant wants.
• If the claimant is living separately, then there must exist reasonable grounds for living separately.
• The value of the claimant’s property and the amount of income derived from such property, along with the claimant’s own earnings, must be taken into consideration.
• Any other factors that affect the amount of maintenance.

Landmark cases on maintenance of Muslim wives under the Muslim Women (Protection of Rights on Divorce) Act, 1986

All India Muslim Advocate Forum vs. Osman Khan (1990)

Facts of the case 

In the present case, the Andhra Pradesh High Court examined the right of Muslim women to claim maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986, and under Section 125 of the Code of Criminal Procedure, 1973. The case was brought before the full Judges Bench to consider some of the vital questions that were raised just after the case of Shah Bano, which led to widespread controversy. 

Issues 

The major issues that were considered by the Full Judge Bench of the Andhra Pradesh High Court were as follows-   

• Whether the divorced Muslim woman is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, even after the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986?  
• Whether the maintenance as stated under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is restricted to the period of iddat or extends to future needs after the iddat period?
• To what extent are Sections 125 to 128 of the Code of Criminal Procedure, 1973,  applicable after passing the Muslim Women (Protection of Rights on Divorce) Act, 1986 and what would the mode of disposal of cases pending before the court under these Sections be?

Judgement of the case

It was held by the Andhra Pradesh High Court that the obligation of the Muslim husband to pay maintenance is limited till the period of iddat only. The amount paid during the period should be sufficient for her to maintain herself for the rest of the period. It was further stated by the Court that even after the maintenance is paid by the husband and the wife is unable to maintain herself, then she can claim maintenance from the relative who would inherit her property, and ultimately, from the Wakf Board, if nothing works.

The Court also ruled that Sections 125 to 128 of the Code of Criminal Procedure, 1973, do not apply to divorced Muslim women unless the parties opt for their applicability under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.     

Sayed Fazal Pookoya Thangal vs. Union of India (1993)

Facts of the case

In this case, a divorced Muslim woman from Kerala, named Jameela, was awarded a maintenance amount of Rs. 15,400/- by the Judicial Magistrate. However, she was only able to recover an amount of Rs. 6,000/- and her husband was sent to jail for the unpaid amount of maintenance.

Jameela, unable to maintain herself and her three children, sought maintenance from the Kerala Wakf Board under Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Judicial Magistrate ordered the Wakf Board to pay the monthly maintenance of Rs. 250/-. The Wakf Board did not challenge the order made by the Judicial Magistrate, but the chairman of the Wakf Board, named Syed Fazal Pookoya Thangal, filed a petition questioning the constitutional validity of Section 4(2) of the Act. It was contended on behalf of the Wakf Board that the obligation of the Board to pay maintenance to divorced Muslim women by diverting their funds violates Article 25 (freedom of conscience and free profession, practice and propagation of religion) and Article 26 (freedom to manage religious affairs) of the Indian Constitution.

Issues

The Kerala High Court considered various issues, which were as follows –

• Is Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which directs the Wakf Board to pay maintenance, constitutionally valid?
• Whether the payment of maintenance under Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, violates Article 25 and Article 26 of the Indian Constitution?

Judgement of the case

The Kerala High Court dismissed the petition. It was ruled that the Wakf Board is a statutory body and is not a religious denomination and therefore, the Wakf Board does not fall under Article 26 of the Indian Constitution. The Kerala High Court further stated that the maintenance to be paid under Section 4(2) comes from the funds of the Wakf Board and not directly from the properties of Wakf. Therefore, the Court dismissed the petition and held that Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not infringe Articles 25 and 26 of the Indian Constitution.  

Danial Latifi & Anr vs. Union of India (2001)

Facts of the case

The present case arose after the judgement passed in the case of Shah Bano and the consequences associated with it. After the Shah Bano judgement, the government came up with an Act, known as the Muslim Women (Protection of Rights on Divorce) Act, 1986. The main objective behind the enactment of this Act was to protect the rights of Muslim divorced women. Danial Latifi, who had been the counsel of Shah Bano, challenged the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, on the ground that the Act is inconsistent with the various provisions of the Indian Constitution, in particular, Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), and Article 21 (protection of life and personal liberty).

It was contended by the petitioner that Section 125 of the CrPC (at present – Section 144 of BNSS) has been enacted to provide relief to divorced women and hence, it falls within the ambit of Article 21, which guarantees the right to life and personal liberty. It was also added that denial of remedies under Section 125 of the CrPC (at present – Section 144 of BNSS) to Muslim women would amount to infringement of Articles 14, 15, and 21. It was further contended by the petitioner that the Muslim Women (Protection of Rights on Divorce) Act, 1986, undermined the secular character of Section 125 of the CrPC (at present – Section 144 of BNSS) if it were not applicable to Muslim women.

Issues of the case 

• Whether the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, are inconsistent with Articles 14, 15, and 21 of the Indian Constitution?
• Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, is constitutionally valid?

Judgement of the case

The Supreme Court of India held that the husband is liable to pay reasonable and fair maintenance for the livelihood of the divorced wife. The Court said that the reasonable amount that is required for sustenance by the women, beyond the period of iddat, must also be paid by the husband within the iddat period, in accordance with Section 3(1) of the Act.

The Court further added that a Muslim divorced woman who has not remarried and is unable to maintain herself after the period of iddat, can proceed in accordance with Section 4 of the Act. The provision states that she should be supported by her relatives in proportion to their inheritance from her property after her death. If the relatives are not able to pay maintenance, the Magistrate may direct the State Wakf Board to pay the same.

Therefore, the court finally concluded by stating that the provisions of the Act do not violate Articles 14, 15, and 21 of the Indian Constitution and that the Act is constitutionally valid.     

Iqbal Bano vs. State of UP (2007)

Facts of the case

In the present case, the husband and wife got married to each other in the year 1959, and a son was born out of wedlock, who died in the year 1991. The husband and wife were living separately after the death of their son. The husband stopped visiting the wife as well as paying money for her sustenance. In 1992, the wife approached the Court of Judicial Magistrate and filed a petition under Section 125 of CrPC (at present – Section 144 of BNSS) claiming the amount of maintenance of Rs. 500 per month. The husband contended that he already divorced his wife by uttering triple talaq a long time ago and along with that, the amount of mehar was also paid by him. It was further stated by the husband that in accordance with the Muslim personal law and also under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, he is not obliged to pay maintenance beyond the period of iddat and therefore, the claim of maintenance by the wife must not be allowed. 

However, the submissions of the husband were rejected and the wife was allowed maintenance of Rs. 450 per month. Aggrieved by the decision of the Trial Court, the husband filed a revisional petition against such an order before the Additional Session Judge. The Additional Session Judge allowed the appeal and held that the petition for maintenance under Section 125 of CrPC (at present – Section 144 of BNSS) is not maintainable for Muslim women after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the application must be filed under Section 3 of the said Act. It was further added by the Additional Session Court that, after the payment of mehar and the expiry of the iddat period, the marriage between husband and wife is considered dissolved. The wife, aggrieved by the order of the Additional Session Judge, filed a petition before the Allahabad High Court, which was dismissed, and therefore, the case finally reached the Hon’ble Supreme Court of India by way of appeal.

Issues of the case

The Hon’ble Supreme Court of India considered various issues, which are as follows –

• Whether the divorced Muslim woman is entitled to file a petition under Section 125 of CrPC (at present – Section 144 of BNSS)?
• Whether the liability of the Muslim husband to pay maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986, is confined only till the iddat period?

Judgement of the case

The Hon’ble Supreme Court of India rejected the decision made by the Additional Session Judge that Muslim women are not entitled to claim maintenance under Section 125 of the CrPC (at present – Section 144 of the BNSS). It was clarified by the court that the Muslim Women (Protection of Rights on Divorce) Act, 1986, is limited only to divorced Muslim women and not to married Muslim women. Therefore, the court on this particular issue held that married Muslim women are allowed to claim maintenance under the CrPC (at present, the BNSS). The Supreme Court of India referred to the case of Danial Latifi vs. Union of India (2001) and interpreted Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It was ruled that the husband is bound to make the payment of maintenance before the expiry of the iddat period. However, it was further clarified by the court that the amount paid during the period of iddat must be such that it would be sufficient for a Muslim woman to sustain herself even after this period (until she remarries or does not, as the case may be).   

Therefore, after considering the facts and issues associated with the case, the Hon’ble Supreme Court of India set aside the order made by the High Court and remitted the matter for a fresh consideration.

Recent ruling of the Hon’ble Supreme Court of India on this issue of maintenance   

Mohd. Abdul Samad vs. State of Telangana & Anr. (2024)

Facts of the case

In the present case, the husband and wife got married on 15th November 2012. Subsequently, after the marriage, on account of differences among the spouses, their relationship deteriorated and the wife left the matrimonial home on 9th April 2016. Eventually, the wife initiated a criminal proceeding against the husband for the offence which is punishable under Section 498A and Section 406 of the Indian Penal Code, 1860 (at present – Section 85 and Section 316(2) of the Bharatiya Nyaya Sanhita, 2023, respectively). As a result, the husband pronounced triple talaq and moved before the office of Quzath to seek the decree of divorce. The decree of divorce was granted ex-parte and the certificate of divorce was issued on 28th September 2017. The husband claimed that he attempted to make the payment of approximately Rs. 15,000/- to the wife during the iddat period, which was refused by the wife. Apart from that, the wife filed a petition for interim maintenance under Section 125 of the CrPC (at present – Section 144 of BNSS) before the family court, which was allowed via order dated 9th May 2023. Aggrieved by such an order, the husband filed an appeal before the High Court of Telangana to quash the present order regarding the interim maintenance, eventually leading to the passing of the instant impugned order dated 13th December 2023. Ultimately, an appeal was filed before the Hon’ble Supreme Court of India, challenging the order passed by the High Court. 

Arguments on behalf of the appellant 

The learned counsel appearing on behalf of the appellant contended that – 

• Section 125 of CrPC (at present – Section 144 of BNSS) does not prevail over the Muslim Women (Protection of Rights on Divorce) Act, 1986. As the Muslim Women (Protection of Rights on Divorce) Act, 1986, is a special law; therefore, it prevails over the provisions of CrPC.
• Even if a divorced Muslim women seeks to move to the court of law under the secular provision of Section 125 of CrPC (at present – Section 144 of BNSS), it is not maintainable and the correct procedure would be to file an application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
• To substantiate the contentions, it was argued that, since the Muslim Women (Protection of Rights on Divorce) Act, 1986 is a beneficial and efficacious remedy for Muslim women in contradiction to Section 125 of CrPC, and therefore the resort exclusively lies under the Muslim Women (Protection of Rights on Divorce) Act, 1986. 
• It was further argued by the learned counsel that Section 3 and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, commence with the non-obstante clause and hence, it shall have an overriding effect on the other statutes that are operating in the same field.  
• Based on the above contentions, the learned counsel relied on legal precedents such as M/s. Jain Ink Manufacturing Company vs. Life Insurance Corporation of India and Another (1980), wherein it was held by the court that the special law prevails over the general law. However, if a conflicting statute is passed by the same legislature then the rule of harmonious construction is to be applied while interpreting the statute. The case of Chennupati Kranthi Kumar vs. State of Andhra Pradesh and Others (2023), reiterated a similar position.        

Issue of the case

The major issue before the Court was whether, after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women were prevented from filing an application under Section 125 of CrPC (at present – Section 144 of BNSS)? 

Judgement of the case

The Hon’ble Supreme Court of India, after considering the facts and issues associated with it, dismissed the appeal filed by the husband and allowed his ex-wife to seek maintenance under Section 125 of the CrPC (at present – Section 144 of the BNSS). The Court ruled that Muslim women are allowed to seek maintenance under Section 125 of the CrPC as it is a secular provision, despite the fact that their marriage was dissolved under religious personal law. It was further clarified by the court that if a Muslim woman is married and divorced under Muslim law, then under that situation, both Section 125 of the CrPC as well as the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, would be applicable. The option lies with the Muslim divorced women to seek remedy either under any of the two laws or both. The reason for this was that the Muslim Women (Protection of Rights on Divorce) Act, 1986, is not in derogation to Section 125 of the CrPC; instead, it is in addition to the said provision. 

The court was of the opinion that Section 125 of CrPC (at present – Section 144 of BNSS) is embedded into the text as a social justice measure, and the remedy of maintenance is a crucial source of support for the impoverished, deserted, and deprived sections of women. It was noted by Justice BV Nagarathna that Muslim women who have been divorced through illegal means such as triple talaq (which is declared void) can also claim maintenance under Section 125 of the CrPC. The court further clarified that the right to maintenance is in addition to the remedy which is being provided under the Muslim Women (Protection of Rights on Divorce) Act, 1986, which specifies that Muslim women who have been subjected to triple talaq will be entitled to claim subsistence allowance from her husband. Therefore, it can be concluded that in the case of Mohd. Abdul Samad vs. . State of Telangana & Anr. (2024), it was clarified by the court that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provide remedies in addition to and not in derogation of Section 125 of the CrPC (at present – Section 144 of the BNSS). 

Comparative analysis of maintenance under Muslim Law and Hindu Law

Governing law

With respect to the Muslim community, the traditional laws and Muslim personal laws govern maintenance. Apart from this, the Muslim Women (Protection of Rights on Divorce) Act, 1986, is the primary governing law.

Maintenance under Hindu law is provided based on statutes such as the Hindu Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956. Maintenance under Hindu law can either be temporary or permanent, as observed under Section 24 (maintenance pendente lite and expenses of proceedings) and Section 25 (permanent alimony and maintenance) of the Hindu Marriage Act, 1955.

Beneficiaries of maintenance

Under Muslim law, maintenance is primarily directed towards the wife and children, and under certain situations, maintenance can also be paid to parents, grandparents, and other close relatives. The obligation of the husband to maintain his wife exists only till the period of iddat, but the amount of maintenance paid during the period of iddat must be reasonable enough to sustain her.  

Under Hindu law, the beneficiaries of maintenance are the wife, children, daughter-in-law, and other dependents of the family. Maintenance of wives under Hindu law is provided in accordance with Section 24 and Section 25 of the Hindu Marriage Act, 1955, and Section 18 (maintenance of wife) of the Hindu Adoption and Maintenance Act, 1956.

Gender inclusivity

Under Muslim law, the husband is considered to be the primary responsibility holder. The husband is only obligated to pay maintenance and is not entitled to receive maintenance.

Whereas under Hindu law, either the husband or wife can claim maintenance as enshrined under Sections 24 and 25 of the Hindu Marriage Act, 1955. In the case of Smt. Kanchan W/O Kamelendra Sawarkar vs. Kamalendra Alias Kamalakar (1992), it was observed by the Court that since the husband is neither mentally ill nor disabled, he cannot be provided maintenance only on the ground that his business failed. Further, in the case of Rani Sethi vs. Sunil Sethi (2011), the Court, considering the circumstances and facts of the case—that the wife ran a flourishing business—directed her to pay maintenance to the husband. 

Duration of maintenance

Maintenance under Muslim law lasts only till the period of iddat, but the maintenance that would be required to sustain her beyond the period of iddat must also be paid during that period. However, if the wife is still unable to maintain herself after the period of iddat, she can claim maintenance from relatives, and if not from them, from the State Wakf Board. 

On the contrary, maintenance under Hindu law can apply for a lifetime as well. It can also be altered on the basis of changes in circumstances and the position of the parties,  as per Section 25(2) and Section 25(3) of the Hindu Marriage Act, 1955.

Contemporary issues and challenges regarding maintenance under Muslim law

In the contemporary age, there are various challenges regarding the maintenance of Muslim women that are surging at a rapid rate. Some of these issues and challenges are as follows-

• Lack of uniformity – The first and foremost challenge that is faced by Muslim women in India is the lack of standardised law regarding maintenance. The Muslim personal laws are majorly uncodified, as opposed to the laws of other religions, such as Hindu, Christian, Parsi, etc. As a result of the lack of uniformity, many challenges arise while applying maintenance principles, and thereby difficulties are caused to Muslim women seeking maintenance.
• Insufficient accessibility of legal awareness – The lack of legal knowledge and complexities in the legal process act as an impediment to women’s right to achieve maintenance. Many Muslim women in India face the challenge of receiving just a reasonable amount of maintenance, merely because of a lack of awareness.   
• Gender inequality – The interpretation of Muslim personal law gives us a clear idea regarding the inequalities that exist among men and women. Some of the provisions tend to favour men, which leads to inadequate amounts of maintenance for women. This inequality can have a deterrent effect on the financial independence of divorced Muslim women.   
• Social stigma and coercion – The current cultural norms of society are such that the family prioritises harmony amongst the members and other relatives over going ahead with an open dispute. As a result, this social stigma and pressure from the family and community deter Muslim women from asserting their legitimate claims of maintenance.
• Economic barriers – Many Muslim women, especially those who do not possess the means to maintain themselves, might lack the proper financial resources to hire counsel or go ahead with a prolonged legal battle and because of this, they might not be able to assert their right to claim maintenance.
• Ineffective enforcement and execution of court’s order – There exist situations wherein an order regarding maintenance has been made by the court but is not adequately enforced or complied with. As a result, many women are left with a prolonged legal battle full of emotional distress.
• Influence of socio-economic factors – Many socio-economic factors, such as poverty, unemployment, discrimination, etc., further enhance the problems faced while obtaining maintenance.

These issues and challenges that act as an impediment to the right of Muslim women to claim maintenance, must be eradicated. A comprehensive approach is required to achieve the goal. To curb these challenges, there is a need for legal reform and therefore, making changes and updating subsisting laws can better protect the rights of Muslim women. They should be made aware of their rights pertaining to maintenance and this can be achieved through campaigns that can raise awareness regarding the available remedies. Development of programs and other initiatives to empower Muslim women must also be undertaken, to provide them an avenue to fight the battle for the rights that they deserve. Additionally, to provide practical support and justice to Muslim women, proper implementation of the order and decisions passed by the courts must be ensured. Adhering to these solutions can curb some of the challenges faced by Muslim women, with respect to receiving maintenance.   

UCC and its impact on maintenance law vis-à-vis Uttrakhand UCC

Uniform Civil Code, i.e. UCC, refers to the common sets of law for personal matters such as marriage, inheritance, divorce, adoption, maintenance, etc. that would apply to all people regardless of their religion. The main objective of UCC is to have a secular law that overrides religious law. The main aim of such law is to promote social harmony, gender equality, and secularism by eliminating the existing disparities in the legal system based on differences in religion and community. A code like this seeks to ensure uniformity in law not only among the different communities but also within the community.  

Recently, the state of Uttarakhand has become the first state in independent India to implement UCC. With the implementation of Uniform Civil Code in the state of Uttarakhand, there have been various changes introduced in the matter of marriage, divorce, maintenance, inheritance and live-in relationship. 

The provisions relating to maintenance have been inculcated under Chapter-V of the Uttarakhand Uniform Civil Code (2024). The various provisions relating to maintenance under the Uttarakhand Uniform Civil Code (2024), that brought changes in the previous existing laws are as follows – 

Section 33 of the Uttarakhand Uniform Civil Code (2024)

This Section addresses maintenance pendente lite and the expenses related to proceeding. It states that if, under any proceeding under this part, it appears to the court that either the wife or the husband (or, in some cases, a man with multiple wives prior to the commencement of this code), does not have sufficient income to cover their necessary expenses of the proceeding. The court may, on the application of either the wife or the husband, order the other party to pay the applicant such amount as the court may find  just and reasonable. 

It is pertinent to note that the application for payment of the expenses of the proceeding and such monthly sum during the proceeding must be disposed of within sixty days from the date of service of notice to the respondent. 

Section 34 of the Uttarakhand Uniform Civil Code (2024)

This Section discusses permanent alimony and maintenance. Any court exercising jurisdiction under this part, at the time of passing a decree or anytime after that, on an application made by any of the parties regarding the order of maintenance to be paid by the other party, may grant the order of maintenance at such a monthly rate or periodic sum. While granting the order for the decree of maintenance, the court should take into consideration the respondent’s income and estate, the applicant’s income and estate, and any kind of mutual settlement and agreement among the parties. If there is a change in the circumstances of the case after the order of maintenance is made, then, on account of the court’s satisfaction, the order of maintenance may, at the instance of either party, vary, modify, or rescind in any manner as the court may deem just and proper. 

This Section further describes that mahar, dower, streedhan and other property given to the wife shall be in addition to the claim made for maintenance. 

Conclusion

The entire purpose of providing maintenance is to protect the rights of a dependent person. Their life might change drastically because of the dissolution of marriage or any other instances such as death, incapability, etc. The main objective of granting such maintenance is to provide the same standard of living that the aggrieved party used to enjoy before the dissolution of marriage or any other instances such as death, incapability, etc. Therefore, it can be well inferred that the maintenance is not only provided to the wife but also to other members such as children, parents, grandparents, and other close relatives. 

Maintenance under Muslim law is slightly different from that under other personal laws, and the judiciary has significantly intervened in the aspects that were not in the best interest of the dependents. The cases of Shah Bano and Danial Latifi made an effort to bring reform into the process of granting maintenance. Despite these recent developments in the law pertaining to maintenance, there are still lacunae subsisting which need to be eradicated. However, it can be agreed that the provision of maintenance under Muslim law addresses the essential needs of the dependents and hence fosters a just and equitable support system.

Frequently Asked Questions (FAQs)

Is there any specific provision on the basis of which the amount of maintenance is decided under Muslim law?

There is no such specific provision under any personal laws, on the basis of which the amount of maintenance is decided. The discretion is on the court to decide what just and fair amount of maintenance would be. The court took into account various factors on the basis of which the amount of maintenance can be decided –

• The financial status of the parties;
• Needs of the claimant;
• Standard of living;
• Age and health of claimant, etc.

What are the legal remedies that are available to a Muslim divorced wife if her husband fails to pay maintenance?

If the husband fails to provide maintenance to his wife, the wife can file a petition under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which governs the concept of maintenance amongst the Muslim community. The wife can further claim maintenance from any relative who would be entitled to inherit her property after her death and ultimately, she can also claim maintenance from the State Wakf Board.

Can a wife who refuses to live with her husband still claim maintenance under Muslim law?

A wife who refuses to live with her husband can still claim maintenance. The reason for such a refusal to live with the husband must be valid (physical abuse, mistreatment, etc.). However, if the wife is living separately without any reasonable cause, then she might not be entitled to claim maintenance.

Can a Muslim wife claim maintenance if she is employed and earning?

A Muslim wife who is employed and is earning does have a full right to claim maintenance and this factor would not solely absolve the responsibility of the husband to pay maintenance. However, the court may consider this factor while determining the amount of maintenance.

Can the amount of maintenance be altered after being decided on?

If the financial status of the party who is under obligation to pay maintenance changes or deteriorates, an application can be made to the court for an alteration in the amount of maintenance. Conversely, the party to whom the amount of maintenance was granted can also apply to the court if their situation changes and they need any alteration in the amount. The court, after considering the circumstances, may decide to alter the amount accordingly. 

What are the other provisions under which a Muslim wife can claim maintenance?   

Muslim wives can claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. This Section provides that any person who has sufficient means to maintain themselves cannot deny maintenance to their wife, children, or parents if there arises a situation wherein they are unable to maintain themselves. This is a secular provision that is applicable to all persons, irrespective of their religion and is not concerned with the personal laws of the parties.  

If any person with sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, then a Judicial Magistrate of the First Class, on receiving proof of such neglect, can order the person to pay a monthly allowance as maintenance, at such rate as the Magistrate may deem fit. Under this Section, the term “wife” includes any woman who has been divorced from her husband and has not remarried. She must be a legally married wife and can be of any age, even a minor. However, the wife is not allowed to receive maintenance from her husband if she is living in adultery, refuses to live with the husband without any reasonable cause, or if she is living separately by mutual consent between the couple.  

In the case of Bai Tahira A vs. Ali Hussain Fissalli Chothia and Anr. (1978), the court noted that the payment of mehar is a customary practice, and divorced Muslim women retain the right to claim maintenance under Section 125 of the CrPC (at present – Section 144 of BNSS) until the reasonable sum is discharged.

References  

• Family Law-II, 4th Edition by Dr. Poonam Pradhan Saxena 
• http://sgm.org.in/teaching/muslim/e3.pdf
• https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/law-of-maintenance-under-muslim-law
• https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/05-MAINTENANCE-OF-MUSLIM-1-1.pdf