Maintenance Rights Of a Muslim Woman

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Maintenance Rights Of a Muslim Woman

As we observe our country from earlier times, our society is in a stereotype of never ending loop of gender equality and women rights in every religion. Our religion somehow gained importance over the basic rights of a person leading to major injustice toward the female sect of the society

Introduction:

As we observe our country from earlier times, our society is in a stereotype of never ending loop of gender equality and women rights in every religion. Our religion somehow gained importance over the basic rights of a person leading to major injustice toward the female sect of the society. Women were majorly compared as inferior as to the men and the remaining role is played by the religion towards gapping the differences between men and women by suppressing them in many possible manners. One such aspect towards gender injustice which I am going to write is about the Right to Maintenance of a Muslim Woman.

Maintenance refers to the amount sought by or ordered/ agreed to be paid to the dependent. Maintenance is the basic requirement of every human being to keep protected against various social, economic, health, housing and educational factors. In our society, mostly a man owns the property and the women were left to be depend on a male member for her daily livings like her father, husband, brother, son and her in-laws. The male members especially in the Muslim sect suppress the females to prove their superiority and masculinity. The issue of maintenance to Muslim women is riddled with complexities and controversy.

The right to claim maintenance under the general law means the right of any person in a relationship incapable of maintaining oneself and dependent on someone to seek resources for sustenance from that person. However, the nature and scope of maintenance of Muslim women varies under the following laws:

1. Muslim Personal Laws

2. Criminal Procedure Code (CrPC), Section 125

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

The main aspect to consider carefully is that with respect to Muslim Personal Laws, it says that the husband is only required to maintain the wife during the iddat period that was followed after dissolution of marriage. Iddat is the period observed by the woman in which she is prohibited from remarrying again. The main motto is to preserve the parentage of child that she may be pregnant with at the time of talak. Hence, it stretches till 3 menstrual cycles or till the delivery of the child if she is pregnant.

The conflict comes in picture when the argument was raised that Muslim woman deserved maintenance even after the iddat period as alone is in no way sufficient to maintain her. Maintenance was sought to be claimed under the secular Section 125 of CrPC as it provides the Muslim women and it is stretched beyond the iddat period.

 Muslim Personal Laws: 

Under the Muslim Personal laws, maintenance i.e. nafaqa is the obligation of a Muslim man arises only if the woman has no means or property to maintain herself.

As per the Muslim laws, maintenance is the amount a man spends on his family. The right to maintenance of a woman is absolute and not conditional if she is able to maintain herself or not. It is the duty of all husbands to provide adequate maintenance to wife in all conditions. 

A man can withdraw from his duty to not maintain his wife in the following cases: if the wife has not attained puberty; if she has abandoned her duties toward husband and marital home; if she absconded with other man or if she disobeys the commands of husband. 

If a Muslim man has divorced his wife, he is still in a position to maintain his wife till the time of iddat period i.e. after 3 months till talak to gain the parentage of child and in case if she is pregnant, he is now be obliged to maintain till the child is born. 

The Criminal Procedure Code, 1973:

Section 125 of CrPC empowers the magistrate to order maintenance in favour of Muslim woman whose marriage remains intact in law. If the husband refuses to maintain his wife without any legitimate reason the wife can sue him for maintenance. Since it is a secular law Section 125 provides right to maintenance to all women irrespective of all castes and religion.

Thus, Section 125 can have no application to a Muslim woman unless both the husband and wife give their consent to be subject of it under Section 5 of the CrPC. But the judicial position of maintenance under this Act’s jurisdiction is cleared in the case of Shamim Bano v. Ashraf Khan; as it interprets that Section 125 is universally applicable to women regardless of personal laws. Also in the most landmark case of Shah Bano; the Supreme Court held that Section 125 is applicable to Muslim women irrespective of the fact that they had provisions related to maintenance in their Mahomedan laws.

It was also held that Muslim women are entitled to maintenance under this section before and after divorce.

In the case of Saira Banu v. A.M. Abdul Gafoor, the SC held that irrespective of a Muslim husband’s right to contract another marriage, his first wife is still in a position to claim for maintenance. If the man refuses to maintain without any cause, she will be entitled to file a complaint in civil court under her personal laws. Also the SC interpreted that she is also entitled to get her rights under Section 125 CrPC before the First class magistrate of the court.

Shah Bano Case: Mohd. Ahmed Khan v. Shah Bano Begum & Ors (1985) 2 SCC 556:

In this case, a 62 years old woman was divorced by her husband by pronouncing talak three times in a go. Shah Bano later claimed for maintenance from her husband under Section 125 after she was been divorced. The constitutional bench of SC held that she is entitled for maintenance under Section 125 of CrPC. Furthermore, the Court also relied upon the religious texts of Quranic laws and reached to the conclusion that the husband cannot withdraw his liability to maintain by simply paying Mehr amount or maintenance during the iddat period.

After this judgment, the conventional Muslim community protested against this and they claimed that this decision interfered in their personal laws. The Rajeev Gandhi Govt then under pressure passed the most controversial legislation called as Muslim Women (Protection of Rights of Divorce) Act in 1986 which preceded over the Criminal Procedure. However, the govt. overturned the judgment by enacting this legislation which curtailed the rights of a Muslim woman for maintenance under CrPC.

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

Under this Act, the divorced woman is entitled to a reasonable fair amount of maintenance for herself during the iddat period from her former husband in the case she is not married to another guy. The divorced woman who remains unmarried after the iddat and, she is unable to maintain herself is entitled for maintenance from her relatives who would inherit her property after her death. In case she has no such relatives, the liability of her maintenance lies upon the Waqf Board of that jurisdiction.

This Act has now made the Sections 125 to 128 of CrPC applicable which is also optional of the parties choice in view to get maintenance.

Daniel Latifi & Ors v. Union of India (2001) 7 SCC 740:

In this case, the same advocate of Shah Bano’s case challenged herself about the constitutional validity of the Act of 1986. The SC attempted to dispel the confusion of conflicting judgments that had arisen in the aftermath of Shah Bano. The bench came to a compromise where it upheld the validity of the Act but decided that the provision for maintenance would be applicable uniformly to Muslim sect. The bench also interpreted Sections 3 and 4 of the Act and stated that a divorced Muslim woman is entitled to reasonable and sufficient provision for livelihood along with maintenance, thus the husband is obliged to fulfill this. It was also held that maintenance is not limited only till iddat period but for her entire remaining lifetime or until she got married again.

The court also interpreted that the bench tried to hold the spirit of Section 125 secularly and apply it to the Muslim women’s welfare. However the court didn’t realize the inaccessibility of Section 125 as it needs the consent of both husband and wife equally. The problem comes here as what if the husband may not give his consent to be subjected under Section 125 when he can enjoy lesser liability under the Act of 1986. Also, if a woman can maintain herself beyond iddat period then she does not stands in a position to ask for further maintenance neither from her former husband as well as from her relatives. Thus in most cases the women are unable to use Section 125 for their benefit and we can say that the provision of secularity in Section 125 remains only in words.

Current Status of Maintenance:

Shamim Bano v. Asraf Kahan, the Hon’ble SC came to an interpretation that the woman is entitled not only to Mahr, ornaments and maintenance under Section 3 of the Act of 1986 but also to maintenance beyond iddat period. Here, the court has tried its effort to bring the status of Muslim women equally with men. The bench also sustains the application of Section 125 unanimously even after knowing that her husband i.e. the respondent has not given his consent for this section. The court here felt that it the application of Section 125 was dismissed, the petitioner will be in no position for claiming maintenance except Mehr. Thus, the court has actively handled the situation of this case and brought justice in the favor of Shamim Bano.