Muslim Law: Maintenance and Dissolution of Marriage under Code of Criminal Procedure

Muslim law

• It has been contended that the Mohammadan Law as to maintenance is a law of imperfect obligation imposing a moral and not a legal obligation. According to the Fatawa-i-Alamgiri “maintenance comprehends food, raiment and lodging though in common parlance it is limited to the first. ”

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• As per the Hedaya all those things which are necessary to the support of life such as food, clothes and lodging may confine its solely to food. Thus a person is entitled to maintenance
• If he has no property
• Is related to obligor within prohibited degree The obligator is in a position to support him The persons entitled to maintenance as per Muslim Law are:

1. Wife,
2. Descendants,
3. Ascendants,
4. Other relations Maintenance of Wife

• The maintenance of wife under Muslim Law can be studied under two heads:

1. Maintenance during subsistence of marriage,
2. Maintenance on divorce

• The obligation to pay maintenance to a wife during the subsistence of marriage arises out of the status arising out of a valid marriage or a pre nuptial agreement.
• Thus maintenance of wife can be studied under the following heads -Maintenance on

1.  Subsistence of marriage Arising out of
   A)Status
   B) Ante-nuptial agreement
2. Dissolution of marriage
   A) Under Cr. P.C.
   B) After Act of 1986 During continuance of marriage

•  Arising out of status – Under Muslim Law, the husband is bound to maintain his wife as long as she is faithful to him and obeys his lawful and reasonable orders. The marriage however should be a valid marriage and not which is void or irregular. Also the obligation does not comments if the wife has not attained puberty but commences on the attainment of puberty. In Badruddin v.Aiyasha Begum (1957) All LJ 300, it was held that where a husband marries a second wife or keeps a mistress, the wife may refuse to live with the husband and still claim maintenance.
• Arising out of Contract - Under Muslim Law, certain ante nuptial and post nuptial agreements entered into between parties to a marriage are valid and enforceable.

The husband and wife or their guardians may enter into an agreement whereby a wife is entitled to recover maintenance from her husband on the happening of some specified event such as ill treatment or disagreement or husband’s second marriage etc.

On dissolution of marriage option to be governed by code of criminal procedure

If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.The explanation to Section 125 states that “Wife” includes a woman who has been divorced wife, or has obtained a divorce from, her husband and has not remarried. Under the new section 125 Cr. P. C. the claim of the wife could not be defeated by divorcing her.

However, under Section 127 (3) (b) the Magistrate was ordained to cancel his order passed under Section 125 on proof that the divorcee has received from her husband the whole of the sum which under customary of personal law was payable on such divorce. This under Muslim Personal Law was taken to be Mahr.A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with law. But under Fazlunbi v. Khader Vali, (1980) 4 SCC 125, the Supreme Court reiterated the decision in Bai Tahira case andJustice Krishna Iyersaid : “The payment of an amount, customary or other must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowance the divorcee may need until death or remarriage. The Court by enacting Section 125 to Section 127 charges the court with human obligation of enforcing maintenance. Neither personal law nor other salvationary plea will hold against the policy of public law pervading Section 127 (3) (b).” Bai Tahira v. Ali Hussain Fissalli Chhothia and another, AIR 1979 SC 362 On a simple reading of the explanation (b) of Sec.

125 (1) of the Code it is clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of marriage makes no difference to the right under the current code.The scheme of the provisions in Chapter IX has a social purpose. Section 125 requires as a sine qua non for its application, neglect by husband or father. Where in a petition by a divorced wife u/s. 125 the husband did not examine himself to prove that he was giving allowances to the divorced wife, his case, on the contrary, was that she has forfeited her claim because of divorce and the earlier consent decree held that the husband had no case of non neglect and hence the basic condition of neglect to maintain was satisfied.

Rights

A Muslim woman at the time of divorce is entitled to the following:

• A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
• Where she herself maintains the children born to her before or after her divorce, reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
• An mount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
• All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law;
• All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Application

Where A reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or

• The properties referred to above have not been delivered to a divorced woman on her divorce,
• She or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.Where an application has been made by a divorced woman and the Magistrate is satisfied that-
• her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
• the amount equal to the sum of mahr or dower has not been paid; or
• that the properties have not been delivered to herHe may make an order, within one month of the date of the filing of the application, directing her former husband to:
• Pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be.
• Make an order for the payment of such mahr or dower or
• The delivery of such properties as referred to above to the divorced woman

Failure to pay if

any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may

• Issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure and
• May sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

Failure to maintain herself after iddat period

Where the Magistrate is satisfied that A divorced woman has not re-married and Is not able to maintain herself after the iddat period,

• He may make an order directing such of her relatives who would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

Where there are children

Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Bai Tahira v. Ali Hussain Fissalli Chhothia and another, AIR 1979 SC 362 No husband can claim u/s. 27 (3) (b) absolution from his obligation under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary of personal law whose quantum is more or less sufficient to do duty for maintenance allowance.

The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The purpose of payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself.

• The whole scheme of Sec. 127 (3) (b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties.
• There must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project.

Where parents are unable to pay

If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

Where divorced woman has no relatives

• Where a divorced woman is unable to maintain erself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,
• To pay such maintenance as determined by him or,
• As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.

Maintenance under Muslim Personal Law:

• Maintenance is also termed as Nafaq in Muslim Law.The word Nafaq means food, daily expenditure and lodging.
• under Islamic law similar to the Christian law, the wife is entitled to maintenance from the husband. But under the Hindu law and Parsi law either spouse are entitled to maintenance. Under the Islamic law the duty to maintain the wife arises as soon as she reaches puberty. The Islamic law differs in this aspect as compared to other personal laws where maintenance is provided irrespective of the age of the claimant i. e.

the factor of puberty is not considered. Under the Islamic law, wife loses the claim of maintenance if she is disobedient and refuses to be accessible at all times. This is not so under the other personal laws. The wife does not lose claim of maintenance by being disobedient. The wife under those personal laws loses their claim by factors such as remarriage and unchastity. The wife is also entitled to maintenance in accordance with the stipulations laid in the kabirnama. This aspect of Muslim law is absent in other personal laws, where there is no provision of maintenance according to any contract.

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

• A divorced Muslim woman is entitled to claim maintenance under Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA).
• The Muslim woman can claim for maintenance from her husband only during the iddat period. However, the SC in the landmark case of Daniel Latiffi v. Union of India, interpreted S. 3 (1)(a) of MWA in such a manner that the husband has to make a reasonable and fair provision for maintenance during the iddat period for the future of the divorced wife.After the iddat period if the divorced wife is unable to maintain herself then she has to rely upon her consanguine relatives – children, parents and other relatives who would be entitled to share from her property.
• This is another aspect in which the Islamic law differs from the other personal laws – under Islamic law the obligation of maintenance is not solely upon the husband, which is the case with the other personal laws, but also upon the consanguine relatives.

If she has no such relatives or such relatives do not have the means to maintain her and she is also not able to maintain herself, then the court can direct the State Wakf Board to maintain her. The Maintenance of Women Act (MWA) after its enactment disallowed wife to claim maintenance under CrPC. However the wife can claim maintenance under CrPC if both the parties agree to be governed by CrPC, which is unlikely as S. 3 of MWA is in favour of the husband as compared to S. 125 of CrPC. Thus, we can see that the Hindu, Christian and Parsi personal laws are quite similar to each other, whereas Islamic law has many unique features.However, with the effect of Daniel Latiffi case, the substance of the provision of maintenance remains similar i. e. the husband is mainly obliged to pay maintenance to the wife. Despite the muslim women (Protection of Rights on Divorce) Act, 1986 the original controversy was resurrected in Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj. 141. The contention in this case was that in terms of Section 3 (1) (a) of the Act, the maintenance allowance was payable within the iddat period, which implied that it was paid only during the iddat and not beyond it.Rejecting this contention the court pointed out that the Act nowhere specified the period for which she was entitled to get maintenance, nor did the Act provide that it was to be for iddat only.

Therefore, the word within meant that he was bound to make and pay the provision and maintenance beyond the expiration of iddat.

Maintenance to children and aged parents

• The obligation to maintain children is a personal obligation and arises out of blood relationship as well as a moral duty, which is backed up by statutory provisions. Hindu Law
• There are two personal law statues amongst the Hindus, which create an obligation to maintain children – HAMA and HMA Maintenance of Children: •Section 20 of HAMA imposes an obligation upon the parents –mother and father, both equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. S. 20 (2) of HAMA lays down that the children are entitled to maintenance during their minority.This right of maintenance for the daughter is extended till she gets married.

The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S. 125 CrPC. When an application has been filed under section s24 and 25 of HMA, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i. e. the claimant’s right to maintenance also includes the right of maintenance of the children.Section 26 of HMA also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.

This is a unique feature of Hindu law where the maintenance can be provided to the children not necessarily under a matrimonial proceeding only but otherwise also. Maintenance of parents:

• S. 20 of HAMA also lays down an obligation of maintenance o f old and infirm parents who are not able to maintain themselves out of their own personal earnings and property.The HAMA is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters. Under HAMA, both the mother and the father have an equal right to claim maintenance. The explanation to this section also includes stepmother in the term parent.

However it is important to note that the section imposes an obligation to maintain only those parents, who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm and unable, is only moral.Parsi And Christian Laws

• Maintenance of children: Under the Parsi and the Christian Laws also there are provisions for the custody, maintenance, education etc of the minor children, which are similar to the Hindu law, even though there is no specific provision for maintenance unlike HAMA
• However, it is important to note that under these personal laws, the maintenance of the minor child can be awarded only during the matrimonial proceeding and not otherwise.Maintenance of parents: Under the Parsi and Christian Laws there is no provision imposing an obligation upon the children to maintain their parents. The parents who want to seek maintenance can do so only under the CrPC.

Islamic Laws

• Maintenance of children: Under the Muslim personal law, legitimate (minor as well as major) and illegitimate children are entitled to claim maintenance. The obligation of maintenance of legitimate children is primarily on the father. Which is different from the other personal laws which provides for an equal obligation on both the parents)
• A Muslim father is under an obligation to maintain his sons until they attain the age of puberty and the daughter till she gets married.

The Muslim father is not liable to maintain his adult son unless he is disabled by infirmity or disease. However if the father is poor and incapable of earning, then it is the liability of the mother to maintain the children.If both the parents are poor and incapable of earning then grandfather has to provide for the children. Whereas the obligation of maintenance of the illegitimate children is solely on the mother.

• The quantum of maintenance can be modified or cancelled on the change in circumstances.
• Maintenance of parents: Under the Muslim Law, similar to the Hindu law, children have an obligation to maintain their parents. According to Mulla, children in easy circumstances should maintain his father and mother even if they may be able to earn something.

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