Introduction

• This case deals with the maintenance provided by the husband under the Muslim Law after divorce which was limited to iddat period would not indemnify the husband from his obligations towards the wife.
• Iddat period after divorce is the period:
• where a woman is subject to menstruation, the period of iddat upon divorce is three courses.
• Where the woman is pregnant at the time of divorce, the iddat lasts until delivery whether it is less or more than three months.
• Where the woman is not subject to menstruation, it is three lunar months.
• The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is challenged as under Section 3 of the Act incorporates the provision of maintenance to the Muslim woman given at the time of divorce. Section 3(a) of the act mentions that where an application has been made under by a divorced woman, the Magistrate may, if he is satisfied that-
  (a) 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.

Facts

• In this case, the husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month originally granted by the Magistrate.
• The parties had been married for 43 years before the ill and elderly wife had been thrown out of her husband's residence.
• He paid Rs 3000/- as deferred mahr (dower) and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties.
• It was held earlier in Mohd. Ahmad Khan v. Shah Bano Begum (1985) by the Apex Court that the true position is, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 Criminal Procedure Code, 1973 (CrPC).
• It was held that there is no conflict between the provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance to his divorced wife, who is unable to maintain herself.
• That the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 CrPC and such applications were not barred under Section 127(3)(b) CrPC.
• The Daniel Latifi filed a writ petition in the Supreme Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Issues Involved

• Whether the act was constitutionally Valid?
• Whether the Muslim Women (Protection of Rights on Divorce) are inconsistent with Articles 14, 15 and 21 of the Indian Constitution?

Contentions Of The Petitioner

• The main contention of the petitioner was that Section 125 of the CrPC was framed to address a situation in which a divorced wife was likely to benefit from the divorce, considering Article 21 of the Indian Constitution, which deals with protecting life and personal liberty.
• Another contention of the petitioner was that the act was discriminatory and violative of Article 14 of the Indian Constitution.

Contentions Of the Union of India

• The Union of India submitted that when a question of maintenance arises which forms part of the personal law of a community, what is fair and reasonable is a question of fact in that context.
• The further contention was that under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance to be made and paid by her former husband within the iddat period would make it clear that it cannot be for life but would only be limited for a period of iddat. When that fact has clearly been stated in the provision, the question to interpretation as to whether it is for life or for the period of iddat would not arise. Challenge raised in this petition is dehors the personal law as it is a legitimate basis for discrimination, if at all, and therefore, does not offend Article 14 of the Constitution.

Contention of the Muslim Personal Board

• The main object of the Act was to undo the verdict given in Shah Bano's case.
• He contended that the aim of the Act is not to penalize the husband but to avoid vagrancy and in this context Section 4 of the Act is good enough to take care of such a situation and he after making reference to several works on interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the husband.

Observations

• The court compared the provisions of the Muslim law with Section 125 of CrPC and observed that the requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied.
• The Court further said in Shah Bano's case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.
• The Act applies to women who were married according to the Muslim personal law and who were divorced according to the Muslim personal law. It does not apply to women who were married according to the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved according to the Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954.
• A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
• Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period.
• A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents.
• If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
• The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Conclusion

The Court finally concluded that the act was not violative of the rights under Article 14, 15 and 21 of the Indian Constitution. Hence, the appeal was dismissed.

Notes

Criminal Procedure Code, 1973

• Section 125 - Order for maintenance of wives, children and parents —
  • (1) If any person having sufficient means neglects or refuses to maintain—  
    • (a) his wife, unable to maintain herself, or  
    • (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or  
    • (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or  
    • (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct. 
    • Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. 
    • Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct. 
    • Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.—For the purposes of this Chapter,— (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.  
  • (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.  
  • (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s 2 [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. 
    • Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. 
    • Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.  
  • Explanation — If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.  
  • (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.  
  • (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent. 

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

• Section 3 - Mahr or other properties of Muslim woman to be given to her at the time of divorce.
  • (3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that--
    • (a) 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.

Constitution of India, 1950

• Article 14 - Equality before law — The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—
  • (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
    • (a) access to shops, public restaurants, hotels and places of public entertainment; or
    • (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
  • (3) Nothing in this article shall prevent the State from making any special provision for women and children.
  • (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  • (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
  • (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, —
    • (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
    • (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
• Article 21 - Protection of life and personal liberty — No person shall be deprived of his life or personal liberty except according to procedure established by law.