Muslim Law

Introduction

• This is a landmark judgement under the Muslim Law which empowers a divorced woman to get maintenance after the Iddat period.

Facts

• The appellant husband married the respondent wife in 1932.
• In 1975, the appellant forced the respondent to leave their shared residence.
• Subsequently, in April 1978, the respondent initiated legal proceedings under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), seeking maintenance at a rate of Rs. 500 per month.
• On 6th November 1978, the appellant finalized the divorce through an irrevocable talaq.
• The appellant argued that, according to Muslim Law, he had no obligation to provide maintenance.
• He claimed to have already paid Rs. 200 per month for approximately two years and had deposited Rs. 3000 as dower in the court during the Iddat period.
• Initially, the Magistrate ordered the appellant to pay Rs. 25 per month, but this amount was later increased to Rs. 179.20 by the High Court.
• In response, the appellant filed a special leave petition before the Supreme Court.

Issues Involved

• Whether the Muslim Women are entitled to get maintenance under Section 125 of the CrPC?
• Whether the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife?
• Whether there is any conflict between the provisions of Section 125 of CrPC and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife.

Observations

• On 23^rd April 1985, the Supreme Court in a unanimous decision observed that “The statements in the textbook are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself”.
• However, the Court further said that it is not the subject matter of Section 125 of CrPC that section deals with the cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself.
• As per the Muslim Personal Law, which confines the husband's responsibility to support the divorced wife to the iddat period, it does not address the scenario outlined in Section 125 of CrPC.
• However, the court said that if the divorced wife is self-sufficient, the husband's duty to offer maintenance concludes with the conclusion of the iddat period.
• The court clarified that if she lacks the means to sustain herself, she has the right to seek relief under Section 125 of CrPC.
• In essence, the court established that there is no contradiction between the stipulations of Section 125 of CrPC and those of the Muslim Personal Law concerning the obligation of a Muslim husband to provide maintenance for a divorced wife who is incapable of supporting herself.
• The court further quoted the translation of Holy Quran, ayat 241 by Dr. Allamah Khadim Rashmani Nuri stated that “For divorced women, a provision should be made with fairness in addition of dower; this is a duty on the reverent”.

Conclusion

• The Court finally adjudged in the favour of Shah Bano Begum and directed the appellant to pay Rs 10,000 as maintenance.
• The Court in this landmark judgment added maintenance right of Muslim women under Section 125 of the CrPC and said that the husband has the obligation to maintain the women after the Iddat period.

Notes

Section 125 of CrPC: 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 not exceeding five hundred rupees in the whole, 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.

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) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(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 allowances 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 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 is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.