Maintenance rights of Muslim women
Authored By Aprajita Priyadarshini
Keywords: Maintenance, Divorce, Muslim Law, Nafaqa, Sec 125 of Cr.P.C
Maintenance of any person in law can be defined as the amount of money which is paid to the dependent wife, child or the parents to maintain them. In cases of Muslim Law, the maintenance is the right of a Muslim wife that she is entitled to obtain from her husband. The contrasting feature in the Muslim Law from the Hindu Law is that while the maintenance is a right of a divorced Hindu wife, a divorced Muslim wife is not entitled to such right. This paper is a brief on the Maintenance Rights of the Muslim women. It is an attempt to discuss about the rights and remedies available to a Muslim woman after her divorce.
Laws relating to the maintenance of wife are different in different religions and are governed by the personal laws. The maintenance of a Muslim wife, also called as ‘Nafaqa’, is also thus governed under the Muslim personal law. The liability of the husband in the Muslim Law to maintain his wife is very limited and extends majorly to the scope of the marriage. Provisions of maintenance are not provided for a divorced wife. There are several modes by which a legal wife can claim maintenance under the Muslim Law:
· Under Personal Law
· Under an Agreement
· Under the Criminal Procedure Code
· Under Muslim Women’s (Protection of Rights on Divorce) Act 1986
Under the Muslim Personal Law
The Muslim man is bound to maintain his legally wedded wife as per the settled provisions of the Quran irrespective of the fact whether the wife is a Muslim or a non-Muslim, is rich or poor, young or old.Even though the right to maintenance is an absolute right of a Muslim wife, she can be denied the same if she is unfaithful and disobedient in respect of matrimonial affairs. Also, if she lives separately without any reasonable justification, she forfeits her right of maintenance against her husband. But where a wife separates from the society of the husband because of cruelty towards her, she is still entitled to maintenance.
The right to be maintained ceases with the dissolution of the marriage either by the death of the husband or by a divorce. Maintenance to a widow has not been prescribed for while the same to a divorcee is limited. A Muslim man is obliged to maintain his wife after divorce only till the Iddat period, which is three lunar months or three menstrual courses. If she is pregnant at the time of divorce this liability extends to the delivery of the child or the date of abortion.
Under an Agreement
If at the time of the marriage or afterwards, there had been an agreement between the spouses or their guardians with regards to paying separate maintenance to the wife in case of ill-treatment, cruelty, separation or the marriage of the man with another woman, the wife is entitled to claim the maintenance till her lifetime and such right cannot be done away with owing to the divorce between the spouses.
Under the Criminal Procedure Code
The Section 125 of the Criminal Procedure Code deals with the rights to maintenance to the wife and extended to a divorced wife as well. The provision under Cr.P.C. for maintenance is "applicable to all persons belonging to all religions and has no relationship with the personal law of the parties". The maintenance under this section can be claimed by any Indian wife and the law is of a civil nature meant to serve a public purpose, but since the provision under Sec 125 is contradictory to the laws under the Islamic personal laws to the extent of maintenance of the wife even after divorce and Iddat extending up to death created a lot of judicial controversy. The judgment in case of Shah Bano Begum, where the right to maintenance had been granted to her under Sec 125 of Cr.P.C., gave rise to an unprecedented controversy and was considered to be interference in the personal laws of the Muslims and a new legislation in this context was passed in 1986.
Under Muslim Women (Protection of Rights on Divorce) Act, 1986
This Act attempted to restrict the application of Sec 125 of CR.P.C to the Muslim wife. The Act under Sec 3 made it a mandate for the husband to maintain his wife and to provide her with fair and reasonable provision of maintenance within the Iddat period. If she bears a child, the husband has to pay for the maintenance of the child for two years. An amount equal to Mahr and all the properties given to her before or after or at the time of marriage is to be given to her. Sec 5 gives the spouse an option to be dealt under the maintenance provisions of Cr.P.C. In case after the lapse of the Iddat period, the wife is unable to maintain her, her relatives who would inherit her property after her death are to provide her with a fair and reasonable maintenance and in absence of such relatives, the State Waqf Board shall be bound to do so.
The maintenance of the Muslim women under the Act of 1986 has been dealt with a wide scope so as to free the Muslim women from the strangles of rigidity of the personal laws. The secular nature of the provision of Sec 125 of Cr.P.C. aims to provide remedies to the subjects regardless of their religion. Thus, the maintenance rights of the Muslim Women have thus gained a greater ambit than it had in the previous eras making it easier for them to access their rights.