Mobile View

Main Search Forums Advanced Search Disclaimer

Cites 12 docs - [View All]
The Indian Penal Code, 1860
The Muslim Women (Protection Of Rights On Divorce) Act, 1986
Section 125 in The Indian Penal Code, 1860
The Hindu Marriage Act, 1955
Section 3 in The Indian Penal Code, 1860

User Queries
divorce
maintenance
125
125 cr p c
section 125
divorce act
family court
shah bano
no maintenance under 125
laws of muslim
religion
wakf
cr.p.c
marriage
womens
guardianship
unable to maintain
full bench
laws of india
woman

Central India Law Quarterly
Legal Rights Of Maintenance & Guardianship Of
Muslim Women
VoI.XIII]

LEGAL RIGHTS OF MAINTENANCE & GUARDIANSHIP OF
MUSLIM WOMEN
Justice Or. Smt. Serojini Saxena"

Legal rights of Muslim women are well defined In Muslim Law.
Even
then, above rights of Muslim women are Interpreted by various
High
Courts as ell as by the Apex Court. Through these pages. I shall try
to
give a brief resume of those decisions.

Women rights of inheritance, polygamy. triple talaq divorce,
maintenance and ban on entry into Mosques has enraged women
activists
in India as well as in Muslim countries. In Muslim Law. a divorced
women
. is entitled to get maintenance from her husband dUring the period
of Iddat
(3 lunar months). In Shah Bano's judgments (Mohd, Ahmed Khan
Vs.
Shah Bano Begum, AIR 1985 SC 945), the Apex Court decided
divorced
Muslim woman's claim to get maintenance from her husband
under Sec.
125 of the Cr.P.C. In that case, their Lordships held that after
divorce
during iddat period the husband is liable to pay maintenance to his
wife
under Muslim Law, but after the period of Iddat if she IS unable to
maintain
herself then she canfile a petition under Sec. 125 Cr. P.C. aqainst
'her
husband for getting maintenance for herself till she remarries and
certainly
as provided under Sec. 125 of the Code. In that judgment, the Apex
Court
held that to this extent Sec. 125 of the Code overrides personal law.
The
Apex Court held.

The true position is that, 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. If she is unable to maintain
herself,
she is entitled to take recourse to Sec. 125. Therefore. it cannot be
said
that there is conflict between the provisions of Sec. 125 and those of
the
Muslim Personal Law on the question of Muslim husband's
obligation to
provide maintenance for a divorced wife who is unable to maintain
herself".

In Shah Bano's case, the Apex Court approved Its earlier
decisions
given in Bai Tahira Vs. Ali Hussain, AIR 1979 SC 362 and FAzlunbi
Vs. K.
Khader Vali, AIR 1980 S.C. 1730. Their Lordships also held that
Mahr is
not the amount payable by the husband to the wife on divorce.
Their



Chairperson, MY. Arbitration Tribunal. Bhopal.

408 CENTRAL INDIA LAW QUARTERLY
[2000

Lordships have quoted the decision given by Privy Council in
Harnira Bibi
Vs. Zubaide Bibi, AIR 1916 P.C. 46 at page 48, wherein Privy
Council held
that;

Dower is an essential incident under the Mussulman law to the'
status of marriage to such an extent that is to say that when it is
unspecified at the "me the marriage is contracted, the law declares
that it
must be adjusted on definite principles."

Their Lordships of the Privy Council further held that it is
either
prompt dower payable before the wife can be called upon to enter
the
conjugal domicil; the other deferred payable on the dissolution of
the
contract by the death of either of the parties or by divorce. This
statement
of law was adopted in another decision of Privy Council In Sabit
Husain
Vs. Farzand Hasan AIR 1930 P.C. 80 at page 83. It is specifically
observed that Mr. syed Ameer Ali was a party to the decision in
Hamira
Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir
Hussain.
This judgment of Shah Bano created furor in the Muslim
community and it
culminated in passing of the Act i.e. Muslim Women (protection of
Rights
on Divorce) Act, 1986. Its Sec. 3 provides that notwithstanding
anything
contained in any other law for the time being in force, the divorced
woman
shall be entitled to a reasonable and fair provision and
maintenance to be
made and paid to her within the iddat period by her former
husband. Its
sub-sec. (2) lays down that where a reasonable and fair provision
and
maintenance has not been made and paid, she may file an
application
before a Magistrate for an order of payment of such provision and
maintenance. While deciding such an application under sub-sec.
(3), the .
Magistrate may, if he is satisfied that her husband having sufficient
means has failed or neglected to make qr pay her within the iddat
period a
reasonable and fair provision and maintenance for her, make an
order
directing the husband to pay such reasonable and fair provision and
maintenance for her, make an order directing the 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, standard of life enjoyed by her during her
marriage and
the means of her former husband.

Sec. 4 of the Act further provides that notwithstanding anything
contained in the toreqoinq provisions of this Act or in any other law
for the
time being in force, where a Magistrate is satisfied that a divorced
woman
LEGAL RIGHTS OF MAINTENANCE 409
Vol.XlIlJ

has not remarried and is not able to maintain herself and is desirous
of
obtaining maintenance for post iddat period, the Magistrate may
direct
payment to be made to her by her children, parents, other relatives
of Wak
Board in that sequence. Sec. 5 of the Act gives a right to both the
parties
to give an option to be governed by S. 125 to 128 of the Code when
their
application under S. 3(2) of the Act is pending for disposal. Sec. 7 of
the
Act lays down that every application by a divorced woman under S.
125 or
127 of the Code pending on the date of commencement of this Act
shall
be disposed off by the Magistrate in accordance with the provisions
of this
Act, but subject to the provisions of S.5. All these provisions of this
Act,
in short Muslim Women Act, are interpreted by various High
Courts.

In Peer Mohd. Vs. Hasinabee (1995 JLJ 110), it. is held that
husband gave divorce to his wife after fixation of maintenance by
the trial
court u/s. 125 of the Code divorce was not given during proceedings
before trial court. hence divorce at revisional stage makes no
change.
Provisions of Muslim Women Act do not govern the case. In Abdul
Rashid
Vs. Smt. Farida's. (1994 MPLJ 583) judgment, relying on Apex
Court's
decision M.P. High Court has reiterated that Sec. 125 of the Code is
a
secular provision. It applies to all persons belonging to all religions
and
has no relationship with personal law of parties. Right to
maintenance u/s.
125 of the Code is not taken away by Muslim Women Act. On
divorce
Muslim woman's application will bo.qovemed by the said Act from
date of
divorce. Husband is liable to maintain her during iddat period only
and not
thereafter. Every application under Sec. 125 of the Code made
before or
after divorce would be governed by 1986 Act. Under Sec. 4 of this
Act, a
divorced woman can obtain maintenance for post iddat period
from her
children, parents. other relatives and State Wakf Board, if there is
any, if
show avails this remedy.

In Abida Begam Vs. Shafi Mohammad (1996 MPLJ Note 14)
Sec.
125 of the Code and Sec. 3(2) and Sees. 5 & 7 of the MuslimWomen
Act
are again interpreted by a single Bench of M.P. High Court. In that
case,
maintenance was granted under Sec. 125 of the Code to wife and
daughter
prior to coming Into force of Muslim Women Act. It IS held that
such order
would continue to remain valid and enforceable even after
commencement
of Muslim Women Act. Sessions Judge's order in revision setting
aside
maintenance order on the ground 'that provisions of Sec. 125 Cr.
P.C.
ceased to govern parties in view of their failure to exercise option
under
Sec. 5 of the Act was erroneous. It is clarified that Secs. 125 to 128
of the




II
I

410
CENTRAL INDIA LAW QUARTERLY
[2000

Act, if the parties to the proceedings. on the first date of hearing,
exercise
their option in that regard either jointly or separately. It IS
difficult to hold
that the provisions of the Act would apply to proceedings. already
concluded u/s. 125 of the Code. The provisions contained in Sec.
125 are
beneficial provisions incorporated in the Code for safeguarding
the interest
of deserted/divorced hapless women. who are unable to maintain
themselves. As IS apparent from the nomenclature of the 1986
Act, this
Act was enacted by the legislature with a view to protect the rights
of
divorced Muslim women. Keeping the above object of enacting
these
provisions in mind, the correct interpretation of Sec. 7 of the Act
would be
to hold that the orders passed by the Magistrate under the
provisions of
Se. 125 of the Code prior to the coming into force of the Act, would
continue to remain valid and enforceable even after the
commencement of
the Act. Any other interpretation would frustrate the very purpose
enacting
the 1986 Act.

In Julekha BI Vs. Mohammad Fazal, reported in 1999 (2)
MPLJ 64,
a single JUdge of M.P. Court has interpreted the implications of
Sec. 125
of the Core and of Sec. 3 of Muslim Women Act. In that case, order
of
maintenance was passed in favour of Muslim wife under Sec. 125 of
the
Code. Thereafter. husband gave divorce to his wife. When wife
enforced
the order of maintenance, the husband opposed it on the ground of
subsequent divorce. High Court held that divorced wife IS not
entitled to
get maintenance from her husband after the period of iddat.

Provisions of Sec. 3( 1)(a) and Sec. 125 of the Code were
interpreted by a Full Bench of Andhra Pradesh High Court In
Usman Khan
Rahamani Vs. Fathimunnisa Begum. 1990 Crl.L.J. 1364. The Full
Bench
held that:

"Muslim woman shall be entitled to a reasonable and fair
maintenance within the Iddat period to be made and paid
by her former husband. it is equally clear that r.easonable
and fair provision and maintenance has to be made and
paid by the husband within the period of Iddat, which has
been defined under S.2(b) of the Act. There is nothing in
the section which can be read to mean that the husband
is liable to make reasonable and maintenance beyond the
period of lddat'

Interpreting the words "within" occurring in Sec. 3(1 )(a) of the
Act.
the Full Bench held "It clearly means that is an obligation on the
part of
Vol.Xlllj LEGAL RIGHTS OF MAINTENANCE
411

the husband to provide fair and reasonable maintenance to his
divorced
w[fewithin the period of Iddat and for the period of Iddat only." It
cannot be
interpreted that this liability of the husband extends beyond the
period of
Iddat. To take a contrary view would result in complete negation of
the
principles envisaged under S.3 (1)(a) of the Act of 1986 and defeat
the
very purpose of the Act. SA casts liability on the relatives or the
wakf
Board to pay maintenance to the divorced woman of the divorced
woman
if the divorced woman has not remarried or is unable to maintain
herself
after the Iddat period. Their Lordships also held that the word
'provision'
and 'maintenance' in Sec. 3(1)(a) convey same meaning. They
cannot be
read as meaning two different things. Liability of husband to pay
maintenance as well as to make reasonable provision are confined
only to
the period of Iddat. This was the view of Justice Ramanujulu and
Justice
Sardar Ali Khan of this Bench.

Justice Bhaskar Rao gave a minority view disagreeing only on
this
point that a reasonable and fair provision and maintenance to be
made and
paid do not convey the same meaning. The Muslim woman's right to
claim
maintenance after Iddat period under Sec.. 125 of the Code was
crystallized by Shah Bano's judgment, which came Into controversy
and
under a threat of erosion. In this background of protection, the
resultant
provisions are 5.3(1 )(a) and S.5 of the Act, the former casting a
liability on
the husband to make a reasonable and fair provision even for the
period
beyond the Iddat apart from payment of maintenance within the
Iddat
period and the latter giving the option to the parties to be governed
by
S.125 to 128 of the Code. If it is simply a question of payment of
maintenance for the Iddat period that is truly intended by Sec. 3 (1
)(a) and
nothing more, neither the Legislature would have wasted its breath
by
incorporating the liability of making a provision reasonable and
fair, apart
from paying maintenance, in Sec. 3(1)(a), nor would it have allowed
Sec. 5
to remain otiose on the statute since no Muslim formed husband
with
minimum commonsence would opt for governance by the
provisions of
Sees. 125 to 128 of the Code of Criminal Procedure in the absence of
any
corresponding or balancing liability cast on him by one or other
provision in
the statute. It is equally important to note that S.4. of the Sct
significantly
omits the word 'provision' from the term "a reasonable and fair
provision
and maintenance".

The words in Sec. 3(1)(a) "within the iddat period" lay stress on
the
urgency of making or paying and they cannot be read as confining
the
I

412 CENTRAL INDIA LAW QUARTERLY
[2000

liability to the limited period of lddat. save in so far as maintenance
is
concerned the Muslim Law is' settled on that aspect. Interpreting
t~e
distinct liability of making a reasonable and fair provision as having
been
confined to the penon of iddat would not only render the very S.5
on the
statute otiose but also defeats the specific purpose of casting that
liability
on the former husband by S.3(1 )(a) in contradistinction from SA
whereunder the liability of either the relatives or the Wakf Board is
only to
pay maintenance and there is absolutely no liability to make any
provision
under S.4 of the Act The learned minority judge also relied on
(1988) 3
Crimes 147 - a decision of Kerala High Court in Ali Vs. Sutaira,
whichthe
majority view distinqurshsd.

The Minority Judge after quoting the definition of 'provision'
and
'maintenance' from Webster's means, an amount set apart to meet
a
known liability, the amount of which cannot be decided with
accuracy.
The known liability under Sec. 3(1 )(a) of a husband is to provide
for the
future of the divorced Muslim woman. Thus, according to the
minority view
'provision' and 'maintenance' cannot be read together in a
compendious
. form,


The majority V1fJW also referred to Md. Yunus Vs. Bibi
Pheakani
(1987) 2 Crimes 241, a judgment by single JUdge. of Pal na High
Court;
Abid Ali Vs. Mst Raisa Begum, 1988 (1) Raj. L.R. - a Division Bench
judqrnent of Hajastan High Court wherein it is held that the
husband is
liable to make provision as well as to pay maintenacne only during
the
period of Iddat. They dissented from the judgment of Gujrat High
Court
reported in AA Abdulla Vs. AB. Mohmuna Saivavhai. AIR 1988 Guj.
141, wherein the learned single JUdge took the view that "a
divorced
Muslim woman is entitled to maintenace after contemplating her
future
needs and the maintenance is not limited only up to Iddat period.
The
pharase used in S.3 (1)(a) of the Act of 1986 is "reasonable and fair
provision and maintenance to be made and paid to her" indicates
that the
Parliament intended to see that the divorced woman gets sufficient
means
of livelihood after the divorce and that she does not become
destitute or is
not thrown on the streets without a roof over her head and her
children."
The learned JUdge observed that the word 'provision' itsel1
Indicates that
something is provided In advance for meeting some needs' A similar
view
was taken by Punjab & Haryana High Court in Hazran Vs. Abdual
Rehman, 1989 Cri LJ 1519. wherein their Lordships held that order
of
maintenance u/s. 125 is not affected by the Muslim Women Act.
L.EGAL RIGHTS OF MAINTENANCE 413
Vol.Xlllj

In A. Abdual Gafoor Vs. A.U. Pathurnrna Beevi, 19H8 Cn L.J
1224,
Single Judge of Kerala High Court held that after the enactment of
Muslim
Women Act divorced Muslim wife cannot Invoke S. S i :27 of the
Code
seeking snhancernent of her maintenacne

Recently (Ju:ie, 2000) in a landmark Judgment. Calcutta High
Court
has ruled that divorced Muslim women will get maintencance
allowance till
they remarry. Justice Basudev Panigrahi decided the revision
petition flied
by divorced Muslim woman Sahkila Parvin. Deserted by her
husband
Haidar Ali in 1993 Shakila filed a petition seeking marntenace
allowance
against her husband. Despit service of the copy of the petition, the
husband did not respond. On 15th July, the trial court granted
maintenacne allowance of Rs. 800/- for a customary three months
Iddat
and Denmehr of f1S. 2,5001- to Shakila assailed the said order by
filing
revision before the Calcutta High Court While decidinq her revision
petition, Justice Panigrahi held, the trial court had wrongly
construed the
provisions of S.3 of the Muslim Women Act and held that the
expression
such as "all reasonable and fair provisions and maintenance to be
made
and paid to her" should be construed liberally. His Lordship
observed that
the Supreme Court had unequivocally held that the provisions of
Sec. 125
of the Code overrode the personal law and it necessitated the
enactment
of the Muslim Women Act in Parliament In 1986. Referring to 1994
judgment of a DIVision Bench of Allahbad High Court. Justice
Paniqrahi
said, "according to the provisions of Sec. 125(3) of the Act, the
right to
receive maintenance allowance cannot be restricted to the period
of iddat
only in case of a divorced woman.

Bombay High Court has also recently on 11th July, 2000, while
answering a reference made in Criminal Petition No. 1296 of 1995
Karim
Abdul Rehman Shaikh Vs. Shehnaz Karim Shaikh & Drs. and
Criminal
Revision Application No. 150 of 1998 Rahim Unus Chagla Vs.
Mubina
Banu Rahim Shaikh & Anr., interpretetJ the various provisions of
Muslim
women Act and Sec. 125 of the Code. A Full Bench of Justice Ajit P.
Shah, Smt. Hanjana Desai & J.A. Patel, JJ held that divorced
Muslim
women cannot apply for maintenance under the Code and will have
to do
so only under the Muslim Women Act. Two phrases reasonable and
fair
provision" 'and "maintenance" carry distinct meaning. Tile
intention of the
legislature is clear as they have chosen to employ the said
expressions in
one section. If they were to convey the same meaning there was no
reason for the legislature to use two different expressions.
Answering the
questions posed before them by way of referef1ce the Full Bench
held:

414
CENTRAL INDIA LAW QUARTERLY
[2000
The 1st question

i) Whether the Muslim husband's liability under section 3(a)
of the
Muslim Women Act to make a reasonable and fair
provision and
pay maintenance is only restricted to the Iddat period or
whether it
extends beyond thelddat period?
Answer

i) The husband's liability to pay maintenance to a divorced
wife
ceases the moment Iddat period gets over He has to pay
maintenance to her within the Iddat period for the Iddat
period. But
he has to make reasonable and fair provision for her
within Iddat
period, which should take care of her for the rest of her life
or till
she incurs any disability under the Muslim Women' Act.
While
deciding the amount regard will be had to the needs of the
divorced
woman, the standard of life enjoyed by her during her
marriage and
the means of her former husband and the like
circumstances. If the
husband is unable to arrange for such a lumpsum payment
he can
ask for instalments and the court shall consider granting
him
instalments Till the husband makes the fair and reasonable
provision, the Magistrate may direct monthly payment to
be made
to the wife even beyond the iddat period subject to the
fixation of
the amount of fair and reasonable provision.
The 2nd question

ii) Whether the Muslim Women Act has the effect of
invalidating the
orders/judgments passed under Section 125 of the Code i.e.
whether the Muslim Women Act operates retrospectively so
as to
divest parties of vested rights?
Answer

ii) The orders passed under section 125 of the Code prior to
the
enactment of the Muslim Women Act are not nullified by
reason of
the coming into force of the Muslim Women Act. Such
orders are
binding on both sides and can be executed under section
128 of the
Code. The Muslim Women Act does not divest the divorced
woman
of the right to get maintenance under section 125 of the
Code
vested in her by reason of orders of a competent court
passed prior
to its coming Into force.
The 3rd question

iii) Whether after the commencement of the Muslim Women
Act, a
Muslim divorced wife can apply for maintenance by invoking
the
provisions of chapter IX of the Code?
VoI.XIII] LEGAL RIGHTS OF MAINTENANCE
415

Answer

iii) After commencement of the Muslim Women Act a Muslim
divorced
wife can not apply for maintenance under the provisions of
Chapter
IX of the Code. It is only under section 5 of the Muslim Women
Act. by agreement can the husband and the divorced wife
approach
a magistrate under chapter IX of the Code

The 4th question

iv) Whether the Family Court has jurisdiction to try applications
of the
Muslim divorced women for maintenance after coming into
force of
the Muslim Women Act?

Answer

iv) After coming into force of the Muslim Women Act. a Muslim
Woman can apply under sections 3 and 4 of the said Act only to
Magistrate of the first class having jurisdiction under the Code.
The
Family Court cannot deal with such applications.

The Full Bench was also alive of the fact that the decision of
Division Bench of Bombay High Court in Allabuksh's case
[Allabuksh
Karim Shaikh Vs. Nooriahan Allabuksh Shaikh (1994 Mh.L.J. 1376)
rendered that judgment on 22.6.1994. It was followed by the
learned single
Judge of Bombay High Court in Shaikh Babbu Vs. Sayeda Masart
Begum,
1999 (3) Mh.L.J 465. These decisions are holding the field till date.
Obviously, therefore, the fate of a number of rnattefs has been
decided on
the basis of the said judgment. Bearing the above fact in mind, after
having answered the questions, the Full bench issued following
directions
in the light of the observations made by them in this judgment.

(a) All pending applications under section 125 of the Code filed by
divorced Muslim women pending after the commencement of
the
Muslim Women Act will be treated as applications under the
Muslim
women Act and will be disposed of as per the provisions of the
said
Act.

(b) All applications under section 125 of the Code filed by
divorced
Muslim Women which are pending in the Family Court will be
transferred to the concerned Magistrate's Court for disposal
according to the provisions of the Muslim Women Act. Interim
orders. passed therein will be continued till the Magistrate
disposes
them of.

416 CENTRAL INDIA LAW QUARTERLY
[2000

(c) All applications under section 125 of the Code filed by
divorced
Muslim Women, which have been decided finally pursuant to
the
decision of the Division Bench of this Court in allabuksh's case
(supra) will not be reopened due to the present judqernent.

The other connected question for consideration is whether
Muslim
Women Act has In any way affected Muslim divorcee's right to
claim
maintenance for her children residing with her. Gaffur Vs. Smt.
Salma,
1996 JLJ 39, propounds that: .

"Under Sec. 125 of the Cr.P.C., Muslim father is liable to
maintain his children. Divorced wife would not release him
form liability. Under Muslim Women Act additional
protection has been provided for maintenance of children.
It has not taken away the right of children to be
maintained by their father even if he has divorced his
wife".

In Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 S.CC 233- The
Apex
Court considered the right of minor children staying with their
divorced
mother to claim maintenance under S. 125 Cr. P.C. from their
Muslim
father having sufficient means till they attain majority or in case of
females till they get married. The Apex Court has taken mto
consideration
3 (1) (b) of Muslim Women Act. And observed that this provision
provides
additional maintenance to the divorced mother for maintaining her
infant
child for the fosterage period of two years from the date of birth of
the
child and is independent of the right of the minor children unable
to
maintain themselves to claim maintenance under S. 125. That right
is
absolute under S. 125 as well as under Muslim personal law. Benefit
of S.
125 is available irrespective of religion and it would be
unreasonable,
unfair and inequitable to deny this benefit to the children only on
ground of
their being born of Muslim parents.

Thus, we have seen that provisions of Muslim Women Act have
been interpreted by various High Courts keeping in view the object
with
which this Act was enacted. To my knowledge, up till now no such
case
has reached the Apex Court, hence still Apex Court's interpretation
of the
provisions of Sec. 3 are awaited in the legal world. The very purpose
of
enacting this Act was to protect the rights of divorced Muslim
women. The
very name of the Act is indicative of the object with which this Act
was
enacted. When we compare Secs..3 & 4, it becomes apparent that
Sec.
3(1)(a) makes husband liable for a reasonable and few provision and
417
VoI.XIII] LEGAL R1GHTS OF MAINTENANCE

maint~nance to be made and paid to the divorced women within
the iddat
period, but u/s. 4 when a divorced woman who has not remarried,
is
unable to maintain rerself the iddat penod. she is entitled to
approach the
Magistrate seeking order for the grant of maintenance to be passed
against her children. parents, other relations and finally the
Waiallowed the
mother to retain custody of the child and rejected the father's
appliCation,
the welfare of the minor being the prime consideration.
I

;22 CENTRAL INDIA LAW QUARTERLY
[2000

In Zahirul Hassan Vs. State of U.P. 1988 Cr.: L.J. 230,
Allahabad
, High Court has taken the view that:

"The reason of the rule is that if a woman marries a person who is
not
closely related to the child, the child may not be treated kindly. It is
otherwise, however, where the mother, for instance, marries her
child's
near relation because shch man on ramarriaqe is also expected to
be kind
to the child. But ttat is not absolute and it is open to the Court to
appoint
the mother as thequardian even if she has married a stranger, if the
Court
considers it to be In the interest of the minor."

In Irfan Ahmed Shaikh Vs. Mumtaz AIR 1999 Bam. 25 the
question
of custody of minor child was under consideration. There was
divorce
between the parents. Mother remarred a stranger. The High Court
held,
that mother rernarryinq a stranger is not qualified to get custody
on that
count. But, treatment of child by stranger that is step-father is of
paramount importance. There was absence of evidence of ill-
treatment to
child. Further, the child also refused to go with father but desired
to live
with mother and step-father. On these facts, custody of minor child
was
given to mother.

Thus, we have seen the underlying principles 01 Mohammedan
Law
on this aspect also revolve around the welfare of the child. There is
no
dogmatic insistence that the child must remain with the father
even
against the wishes of the child the moment the mother gets
remarried to a
stranger. That is to happen in normal condition. The
Mohammedan Law
has alo provided for exceptional circumstances. It has never
ignored the
wishes of a minor child who is of the age of discretion like Husna
in Irfan
ahmed's case.

The Muslim male still does not want to give up his right of
polygamy and unilateral divorce. Keeping women in parda is
common
feature of some Muslim community. Many a social practice
amongst
Muslims are very retrograde and detrimental to the lives of
women.
Women's riqhts of inheritance, polygamy, triple talag, divorce,
maintenance and the ban on her entry into mosques shows the
subordinate position of women in the community. There have
been no
major reform movements in the country improving the lot of
women.
Despite these adverse circumstances, there have been efforts by
scattered individuals to initiate the reform process among Muslim
women.
VoI.XIII] LEGAL RIGHTS OF MAINTENANCE
423

Recently, Kerals has initiated the practice of allowing Muslim
women to
enter and offer prayers in the mosque. The example of kerala is now
being
emulated in Lucknow too. Many Muslim groups are also working on
an
ideal Nikahnama (marriage contract) which can protect the rights of
Vliomen after marriage.

The Muslim scripture gives some ground to fight for better
rights for
women, though they are still far away from gender equality. The
reform
process in Muslim countries has begun by taking advantage of the
scriptural version of religion. In Turkey and Tunisia, polygamy and
unilateral divorce is not allowed and maintenance for a divoced
woman is
mandatory for three years. In Pakistan divorce is permissible only
thorugh
an arbitration council and a man who takes a second wife without
the
consent of the first is liable to pay a fine of Rs. 10,000/- and or
imprisonment upto three years (as Zeenat Shaukat Ali has stated in
her
interview Tal 24.8.97). Recent court's judgement in Pakistan and
Bangladesh have taken fairly progressive view in matters pertaining
to
women's rights in marriage.


Legal Servi ce Indi a. com


Maintenance:
Under Hindu, Muslim, Christian And Parsi Laws

Chat with us (2 PM - 9 PM IST)


Romit Agrawal, 4th year student, GNLU, Gandhinagar
Search On: Laws in India





Share on facebookShare on twitterShare on emailShare on
printMore Sharing Services


Introduction
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law.
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to
indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance
for all dependent persons is limited to Rs 500 per month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the
great advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the
customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path
of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified
in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a
matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same
principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act,
1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters
connected therewith or incidental thereto.
This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she
herself maintains children born to her before or after her divorce, a 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;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the
Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of
the husband or his friends. In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period
of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the
Muslim Law, and 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, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by
such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order.
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 parents of such divorced woman to pay maintenance to her. In the
absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established
under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The
maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's
net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to
pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi
law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Maintenance under Hindu law:
Maintenance is a right to get necessities which are reasonable from another. it has been held in various cases that maintenance includes not only
food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live.
Right to maintenance is not a transferable right.
Maintenance without divorce
The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is incapable of sustaining
oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and
widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.

Maintenance as main relief: for wife
The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of
conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim
of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or
any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband
without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in
which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial
tie for various reasons ranging from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that one
of the situations (in legal parlance 'grounds') as stated in the Act, exists.
Grounds for award of maintenance
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These
grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
Bar to relief
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has indulged in adulterous relationship or has
converted herself into any other religion thereby ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief,
the marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the husband and wife
is non-existent and therefore no right of maintenance accrues to wife. However, thanks to judicial activism, in particular cases the presumption
of marriage is given more weightage and the bars to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to
maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her
father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or
illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim
maintenance from their children. The term parent here also includes an issueless stepmother.
Maintenance Under Muslim Law
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim
women who have been divorced by, or have obtained divorce from, their husbands." The Act makes provision for matters connected therewith
or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the
enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under various sections that distinctively lay out the
criterion for women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled to have a reasonable and fair
provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to
the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board for grant as under section (b)which states that If she
fails to get maintenance from her husband, she can claim it from relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed of under the provisions of Sections 125 to 128, Cr. P.c. if the parties so
desire. There is no provision in the Act which nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested
right of the Muslim woman.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus
secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without a roof over her head and
without any means of sustaining herself.
Protection to Divorced WomenSub-section (1) of Section 3 lays down that a divorced Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.
Maintenance Under Christian Law
A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue
both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not
matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law. Under S.37
of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her
alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who
practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi
law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of
THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38
IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an
order of protection the wife may present a petition for alimony pending the suit.
Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such
order on the husband for payment to the wife of alimony pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one fifth of the husband's average net income for the three years next preceding
the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made
absolute or is confirmed, as the case may be.
37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on
any decree of judicial separation obtained by the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,
Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any
term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it
thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments. -In every such case, the Court may make an order on the husband for payment to the wife of such
monthly or weekly sums for her maintenance and support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or
modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the
same order wholly or in part as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the Court makes any decree or order for alimony, it
may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms
or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do.
Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to
indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance
for all dependent persons was limited to Rs 500 per month but now it has been increased and the magistrate can exercise his discretion in
adjudging a reasonable amount. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making
the remedy both speedy and cheap
Order For Maintenance Of Wives, Children And Parents
S.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 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 allowance 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 a 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. The objective of this
section as expressed by Krishna Iyer, J. is ?to ameliorate the economic condition of neglected wives and discarded divorcees?
Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But these criminal proceedings are of a civil nature. Thus,
clause (3) of S.126 which empowers that Court to make such orders may be just.
It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between
the two provisions. A person may sue for maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his or
her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of
maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the concerned section is the refusal or
neglect to maintain his wife, children, father or mother by a person who has sufficient means to maintain them. The criterion is not whether a
person is actually having means, but if he is capable of earning he will be considered to have sufficient means. The burden of proof is on him to
show that he has no sufficient means to maintain and to provide maintenance.

Maintenance Under Parsi Law:
Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both
criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter
at all unlike the civil proceedings.
If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is refusing to pay maintenance even after the order of
the court. The court can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long as
he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and
permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is
one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind
the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste
and unmarried.
S.40. Permanent alimony and maintenance
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application
made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant?s
own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the
case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable
property of the defendant.
(2) The Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section
(1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) The Court if it is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the
wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may,
at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.

More Articles:
We offer Copyright Registration Services
Right from your Desktop.....
Family Laws
Violation of Child Rights in Schools
Minority Rights (Christian)
Whether Amendments Made To The Hindu Succession
Act Are Achieving Gender Quality:

Ask Our legal Experts, on issues related to
Divorce Click Here
Find A lawyer: Delhi - Kolkata - Mumbai - Chennai - Bangalore - Hyderabad - Allahabad - Pune - Ahmedabad - Nagpur -
Cochin - Chandigarh - Gurgaon - Jaipur - Ludhiana
The author can be reached at: romit@legalserviceindia.com / Print This Article

Arbitration
Cyber Law
Copyright
Protect your website
Trademarks
Passport
Income-Tax
Contract laws
Criminal laws
Lok Adalat, legal Aid & PIL
Supreme Court Judgments
Legal Latin maxims
Famous Trials
Download law Forms
Famous - Quotes
Medico Legal
Divorce law
Family law
Patent Forms
Wills
law ibrary
Law Articles
Legal Resources
Cheque bounce laws
Law Blog
legal Discussion Forum
Osama Bin Laden
Stamp Duty Calculator
Link-Exchange
Bare - Acts
Constitutional Law
Immigration Law
Company Law
Partnership firms
Woman issues
Consumer laws
Cause Lists
High Courts in India
legal Profession
Law Forum
Web-Search
Blogs
Ad page
Sitemap
RSS Feed
Lawyers in India - Search by City

lawyers in Delhi - New Delhi
lawyers in Chennai
lawyers in Chandigarh
lawyers in Surat
lawyers in Nashik
lawyers in Janjgir
lawyers in Indore
lawyers in Allahabad
lawyers in Agra
lawyers in Ahmedabad
lawyers in Jodhpur
Lawyers in Noida & Gr Noida
Lawyers in New York
Lawyers India
lawyers in Kolkata
lawyers in Mumbai
lawyers in Bangalore
lawyers in Pune
lawyers in Hyderabad
lawyers in Rajkot
lawyers in Nagpur
lawyers in Pondicherry
lawyers in Jaipur
lawyers in Cochin
lawyers in Lucknow
International Courts
Law Colleges
Law Debates
Home | About Us | Privacy | Terms of use | F A Q | Divorce by mutual consent | Lawyers | Submit article |
Sitemap | Contact Us

Legal Service India.com is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2013

Divorce: Law and Procedure


Welcome
Introductory
HM Act 1955
HM Act FAQs
Legal Separation
Divorce
Mutual Consent
<a href='http://fritz.asnetworks.de/www/delivery/ck.php?n=af514c5a&amp;cb=INSERT_RANDOM_NUMBER_HERE'
target='_blank'><img
src='http://fritz.asnetworks.de/www/delivery/avw.php?zoneid=191&amp;cb=INSERT_RANDOM_NUMBER_HERE&amp;n=af514c5a'
border='0' alt='' /></a>

Div. Procedure
Court Judgements
Family Courts
Divorce: Thoughts
Muslims: Divorce
Muslim Divorce:
Judgements
Alimony
Alimony: Judgements
Maintenance
Muslim Women (PRD) Act
Christian Divorce
Chri. Div.: Judgements
Sex and Divorce
Dowry and Divorce
Family Courts Act
More on Divorce
Judgements II
Pre-marital sex
News Board
Sex Tips
Photos
Special Marriage
About Marriages
Honour Killings
Marriage Reports
Registration
Live- in relationship
Moral Policing
Gay Marriage
Marriage extravaganza



<a href='http://fritz.asnetworks.de/www/delivery/ck.php?n=a4c5d50e&amp;cb=INSERT_RANDOM_NUMBER_HERE'
target='_blank'><img
src='http://fritz.asnetworks.de/www/delivery/avw.php?zoneid=23&amp;cb=INSERT_RANDOM_NUMBER_HERE&amp;n=a4c5d50e'
border='0' alt='' /></a>

Right to Maintenance
V. Padmanabhan, Senior Advocate
Introduction:
The advent of the nuclear family, due to globalization and consumerism, ensured the
disintegration of the Joint Family system which was prevalent for several Yugas. The
dismantling of the Joint family resulted in withdrawal of the support system which acted
as a buffer to weather difficult periods during the early phase of marital life.
Consequently, a couple had to find both the psychological and financial support within
and by dint of hard work respectively which invariably culminated in a stressful life. The
Consequence is the break down of family bonding resulting in divorce. This arises due
to incompatibility between spouses. The children also have to endure the psychological
conflict due to differences between parents. The wife and the children required
sustenance and the law stepped into ensure they are not subjected to distress.
Genesis
According to Black's legal Dictionary the origin of the expression "Alimony" lies in the
Latin Word "Alimonia" which means sustenance. It has not been defined in any of the
statutes in India. Sustenance stems from the common Law right of the Divorced wife to
support by her husband. "Alimony in Gross" or "in lumpsum" is in the nature of final
property settlement. However, Alimony in strict sense contemplates payment of money
at regular intervals. It also includes, permanent and pendatelite spousal support.
Generally it is restricted to money, unless otherwise authorised by statute.
It is a term used to describe the allowance made to a married women when she is
under necessity to live apart from her spouse. The object of the provision is the
prevention of vegarancy and to provide the neglected wife and children sustenance in
their distress. It is consistent with Article 15(3) and 39 of the Constitution of India. Bala
Nair Vs. Bhavani Ammal (1987 Cr.L.J.399).
Statutory Provision:
The Power of the Court to order maintenance, when proceedings are pending for
matrimonial relief has been provided under different statutes. Section 24 of the Hindu
Marriage Act; Section 36 of the Special Marriage Act and the Divorce Act and Section 39
of the Parsi Marriage Act speak about alimony pendatelite. Section 25 of the Hindu
Marriage Act, section 40 of the Parsi Marriage Act and Section 37 of the Special
Marriage Act and Divorce Act, provides for permanent alimony and maintenance.
Section 85 of the Mohamedan Law states that the wife may get maintenance in
accordance with the provisions of Section 125 of the Code of Criminal Procedure. This is
to ensure that a derelict Muslim husband cannot take umbrage under his personal law
in order to defeat these statutory obligations under the code of Criminal procedure.
Ameer Amanullah Vs. P.Maniam Beevi
(1985 (1) MLJ (Cri) 164
Code of Criminal Procedure:
Section 125 of the Code of Criminal Procedure reads as follows:
(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 :
This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not
being a married daughter) who has attained majority, where such child by reason of
any physical or mental abnormality or injury unable to maintain itself or a person's
father or mother unable to maintain himself or herself.
From the reading of the section it is clear that a person is bound to maintain his wife,
children and aged parents, who are unable to maintain themselves. While ordering
maintenance the Court has to consider the income and the status of the person who is
liable to pay maintenance and also the income and status of the person claiming
maintenance. Though a wife can file a suit for maintenance in a Civil Court, this Section
is provided to get maintenance as early as possible. For a person, food, clothing and
shelter is essential. While ordering maintenance, Court has to consider whether the wife
is living separately on reasonable grounds. The wife can refuse to live with her husband
if he lives with a mistress. No wife shall be entitled to receive maintenance from her
husband under this Section if she is living in adultery, or husband and wife are living
separately by mutual consent. The petitioner can file any number of petitions under
Section 125 Cr.P.C for enhancement of
maintenance when the circumstances change. The Court after considering the change
of circumstances can enhance the maintenance accordingly. Originally a magistrate can
order Rupees 500 per month as maximum maintenance. After the recent amendment
maintenance exceeding Rs.500 can be ordered according to the circumstances of each
case.
Wives right to maintenance is not absolute under 125 of the Code. It is Circumscribed
by the fact that she is unable to maintain herself and further the husband having
sufficient means neglected or refused to maintain her. No doubt, there is a clear
distinction between the locus standi or competence to file a petition for maintenance
under Section 125 of The Code by any of the persons illustrated in the Section and their
being entitled on merits to particular amounts of maintenance thereunder. However,
the premises for both is essentially the existence or otherwise of their separate income
or means of support besides other factors stipulated in the Section. K.M.Nagammalappa
Vs. B.J.Lalitha, 1985 Cr.L.J 1706 (KANT) See also Hyma Krishnadass Vs.
M.Krishnadass, 1985 (2) CRIMES 661 (KER), Habeebulla Vs. Shakella, 1984 Cr.L.J
1062.
Quantum of Maintenance
Right of Maintenance under Hindu Law is a substantive right and a continuing right and
it is variable from time to time. The Family Court or the District Court may in
satisfaction of change of circumstances modify, recind or enhance the maintenance
allowance. On proof of change and circumstance, the family Court has jurisdiction
under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the
Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar
(AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a
number of factors and the same must be determined on the facts of a particular case.
The said ruling was rendered prior to the enactment of Hindu Adoption and
Maintenance Act 1956.
The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said
observation by the Privy Council under Section 23(2) of the said Act. See also
K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh
(2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She
must have the necessary medical facility, food, clothing etc.. While fixing the amount of
maintenance, the Court should also take into account considering the inflation and cost
of living and his obligation to support the minor child and his parents. S.Jayanthi
Vs.S.Jayaraman (1998(1) DMC 699).
There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony.
It is only the independent income of the payee which is to be considered. While
granting relief of permanent alimony, the court has to keep in view the following
considerations:
i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.
Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab)
In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact
that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her
getting alimony pendante lite under Section 24 of the Hindu Marriage Act.
Enforcement:
After ordering maintenance if the respondent husband fails or refuses to pay the
maintenance without sufficient cause the magistrate can issue warrant for levying the
amount due in the manner provided for levying fines and may also sentence such
person for the whole or any part of each month's allowance 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 applications made to the Court to
levy such amount within a period of one year it became due. Proceedings under Section
125 Cr.P.C is considered to be of a civil nature. Though they are wholly governed by
the procedure of the code of criminal procedure, they are really of civil nature, but are
dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds
of convenience and social order. Pandharinadh Sakharam Thuve Vs. Surekha
Pandharinadh Thuve, 1999 Cr.L.J 2919 (BOM). It is to be borne in mind that a petition
filed under Section 125 Cr.P.C is not a complaint and the person arrayed as the
opposite party is not an accused. Following the decision of the Supreme Court in AIR
1963 SC 1521, which held that instant proceedings under 125 Cr.P.C is a proceedings
of a civil nature in which the Magistrate can invoke the inherent powers to recall his
earlier order finally disposing a proceedings of this nature, provided, sufficient grounds
are shown. SK.Alauddin Vs. Khadizebb, 1991 Cr.L.J 2035.
Hindu Law Text enjoins upon the husband a mandatory duty to maintain his wife. The
duty to maintain is dehors his possession of any property. A decree for maintenance
creates a charge on his property. IN Raghavan Vs. Nagammal (AIR 1979 Mad 200) the
High Court of Madras held that an order of maintenance, in term of Section 39 of the
Transfer of property Act, creates a charge on the property Act. This principle was
extended to an order passed under Section 125 Cr.P.C. in Diwakaran Vs. Barghavy
Chellamma (1985 (2) DMC 486).
Apart From the above, Section 125 (3) of the Cr. P.C. r/w Section 128 of the Cr.P.C.
empowers the Magistrate to enforce the execution in case of default by the person
ordered to pay maintenance. Section 51 of the C.P,.C. can also be utilised for enforcing
the order of maintenance.
Validity of Marriage
Validity of the marriage for the purpose of summary proceedings under Section 125
Cr.P.C is to be determined on the basis of the evidence brought on record by the
parties. The standard of proof of a marriage in such proceedings is not as strict as is
required in a trial of offences under Section 494 IPC. If the claimant in proceedings
under Section 125 of The Code succeeds in showing that she and the respondent have
lived together as husband and wife the Court can presume that they are legally wedded
spouses, and in such a situation the party who denies the marital status can rebut the
presumption. Undisputedly marriage procedure followed in the temple, that too, in the
presence of the idol of Lord Jaganath, which is worshiped by both the parties is
considered to be valid. Once it is admitted that the marriage procedure was followed
then it is not necessary to further probe in to whether the said procedure was complete
as per the Hindu rites in the proceedings under Section 125 Cr.P.C. Dwarika Prasad
Satpathi Vs. Bityut Prava Dixit, (1999) 7 SCC 675 = 1999 (4) CRIMES 206 = 2000
Cr.L.J 1, See also Raju Vs. Pushpa Devi, 1999 Cr.L.J 2294.
The High Court of Bombay in K.M. Vyas Vs. R.K.Vyas (AIR 1999 Bom 127) held that the
second wife is entitled to get maintenance under Section 24 of the Hindu Marriage Act
even if the Second Marriage of the husband is void. In Devinder Singh Vs. Jaspal Kaur
(1999 (1) MDM (535) the Punjab and Hariyana High Court held that the Right to claim
maintenance under Section 25 of the Hindu Marriage Act is not defeated even where
the marriage is dissolved by a Decree of Nullity. In Malika Vs. P.Kulandai (2001 (1)
DMC 354) the court held that when the husband contracted the Second marriage by
suppressing the fact of the first marriage, the wife and child are entitled to maintenance
under Section 125 of the Cr.P.C.
Recent Trends:-
The Apex Court in Komalam Amma Vs. Kumarapillai (2008(14)SCC 345) held that the
Hindu Wife is entitled to be maintained by her husband. She is entitled to remain under
his roof and protection. She is also entitled to separate residence,if by reason of the
husband's conduct or by his refusal to maintain her in his own place of residence or
other just cause she is compelled to live apart from him. Right to Residence is part and
parcel of wife's right to maintenance. The Right to Maintenance cannot be defeated by
the husband executing a will to defeat such right..... For the purpose of maintenance
the term "Wife" includes Divorced Wife.
The said court in Sipra Bhattacharyya's case (2009 (4) SCC 366), has held that the tiral
court is duty bound to dispose of the Appliction for maintenance before the suit for
Divorce is decided and that too within a time frame. In Rajesh Varman's case (2009 (1)
SCC 398) the said court held that the term maintenance and support are
comprehensive in nature and of wide amplitude and they would take within their sweep
medical expenses. However, in Vimalaben Ajithbai Patel's case (2008 (4)
SCC 649) the court held that the mother-in-law cannot be fastened with any legal
liability to maintain her daughterin- law from her own property or otherwise. A wife is
only entitled to maintenance from her husband.
The recent trend feathering the concept of "live-in" and same sex relationships has
created the need to extend maintenance in such relationship also. In Western Countries
unmarried relationships and same sex relationships have been recognized by statutes
and judicial notice has been taken by courts. The dependent partner in such
relationship have been held entitled to support which is termed as "Palimony". The said
concept of unmarried relationship is gaining momentum amongst the youth in India
also. Consequently, it would be essential to protect the dependent partner if the
relationship is broken.
Conclusion;-
The changing pattern in human thought and attitude has resulted in not only
recognizing but also accepting the abnormality existing within the normal nature in
human beings. The courts and the Legislature in various countries have recognized the
abnormality as a factor which has to be addressed to by the society. Consequently the
Right to Maintenance will have to be addressed by giving it a more expansive
amplitude. However, under the current situation the impediment in enforcing this social
legislation lies in the defence which the husband may take. The defence of matrimonial
wrong being decided as a precondition adds to the inordinate delay in disposing of the
cases and thus has resulted in denying the benefits of the legislation to the dependent
spouse. Most often the deprived partner is unable to sustain the protracted legal battle
in the courts of law. The enforcement machinery is inadequate and often the deprived
person has to approach the court for execution so that the amount ordered is paid. It is
essential that the courts should be empowered to dispose of the Right to Maintenance
on a Fast Track so that this social legislation is enforced both in letter and spirit.


Maintenance
Obligation of a husband to maintain his wife arises out of the status of the
marriage. Right to maintenance forms a part of the personal law.
Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance
extends not only to the wife and dependent children, but also to indigent
parents and divorced wives. Claims of the wife, etc., however, depends on the
husband having sufficient means. Claim of maintenance for all dependent
persons was limited to Rs. 500 per month. But, this limit was removed by the
Code of Criminal Procedure (Amendment) Act, 2001 (No. 50 of 2001). Inclusion
of the right of maintenance under the Code of Criminal Procedure has the
advantage of making the remedy both speedy and cheap. However, divorced
wives who have received money payable under the customary personal law are
not entitled to claim maintenance under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim maintenance from her
husband. But she loses her right if she deviates from the path of chastity. Her
right to maintenance is codified in the Hindu Adoptions and Maintenance Act,
1956. In assessing the amount of maintenance, the court takes into account
various factors like position and liabilities of the husband. It also judges
whether the wife is justified in living apart from husband. Justifiable reasons
are spelt out in the Act. Maintenance pendente lite (pending the suit) and even
expenses of a matrimonial suit will be borne by either, husband or wife, if the
other spouse has no independent income for his or her support. The same
principle will govern payment of permanent maintenance.
Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce)
Act, 1986 protects rights of Muslim women who have been divorced by or have
obtained divorce from their husbands and provides for matters connected
therewith or incidental thereto. This Act, inter alia, provides that a divorced
Muslim woman shall be entitled to:
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 children born to her before or after her
divorce, a 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 amount equal to the sum of mehr or dower agreed to be paid to her
at the time of her marriage or at any time thereafter according to the
Muslim Law and
All property given to her before or at the time of marriage or after her
marriage by her relatives or friends or by husband or any relatives of the
husband or his friends.
In addition, the Act also provides that where a divorced Muslim woman is
unable to maintain herself after the period of iddat, the magistrate shall order
directing such of her relatives as would be entitled to inherit her property on
her death according to the Muslim Law and 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, standard of life enjoyed by her during her
marriage and means of such relatives and such maintenance shall be payable
by such relatives in proportion to the size of their inheritance of her property
and at such periods as he may specify in his order.
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 parents of such
divorced woman to pay maintenance to her.
In the absence of such relatives or where such relatives are not in a position to
maintain her, the magistrate may direct State Wakf Board established under
Section 13 of the Wakf Act, 1995 functioning in the area in which the woman
resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to
maintenance-both alimony pendente lite and permanent alimony. The
maximum amount that can be decreed by the court as alimony during the time
a matrimonial suit is pending in court, is one-fifth of the husband's net income.
In fixing the quantum as permanent maintenance, the court will determine
what is just, bearing in mind the ability of husband to pay, wife's own assets
and conduct of the parties. The order will remain in force as long as wife
remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a
Christian wife. The provisions are the same as those under the Parsi Law and
the same considerations are applied in granting maintenance, both alimony
pendente lite and permanent maintenance.




Campaign Against Child Marriage:
Visit our site: http://childmarriage.hpage.com




go to top




Divorce: Law and Procedure


Welcome
Introductory
HM Act 1955
HM Act FAQs
Legal Separation
Divorce
Mutual Consent
Div. Procedure
Court Judgements
Family Courts
Divorce: Thoughts
Muslims: Divorce
Muslim Divorce:
Judgements
Alimony
Alimony: Judgements
Maintenance
Muslim Women (PRD)
Act
Christian Divorce
Chri. Div.: Judgements
Sex and Divorce
Dowry and Divorce
Family Courts Act
<a href='http://fritz.asnetworks.de/www/delivery/ck.php?n=af514c5a&amp;cb=INSERT_RANDOM_NUMBER_HERE'
target='_blank'><img
src='http://fritz.asnetworks.de/www/delivery/avw.php?zoneid=191&amp;cb=INSERT_RANDOM_NUMBER_HERE&amp;n=af514c5a'
border='0' alt='' /></a>



<a href='http://fritz.asnetworks.de/www/delivery/ck.php?n=a4c5d50e&amp;cb=INSERT_RANDOM_NUMBER_HERE'
target='_blank'><img
src='http://fritz.asnetworks.de/www/delivery/avw.php?zoneid=23&amp;cb=INSERT_RANDOM_NUMBER_HERE&amp;n=a4c5d50e'
border='0' alt='' /></a>

More on Divorce
Judgements II
Pre-marital sex
News Board
Sex Tips
Photos
Special Marriage
About Marriages
Honour Killings
Marriage Reports
Registration
Live- in relationship
Moral Policing
Gay Marriage
Marriage extravaganza


Divorce in Islam: Lal Mohd
Many people of other religions believe that a married Muslim man can
dissolve his marriage at any time by saying to his wife: "Talaq, talaq,
talaq" at one occasion of his own free will and desire. ("Talaq" means "I
divorce you.") This motivated me to study the the actual existence of
this method of dissolution of a marriage in Islam.
After solemnization of marriage between parties, if some problems arise,
the husband may divorce his wife. The question is how he divorces his
wife, and whether pronouncement of divorce three times at one occasion
is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College,
Mumbai published an article in the Indian Express with title: "Divorce,
Divorce, Divorce." He attempted to clear up misconceptions by Muslims
and others about the triple pronouncement of Talaq.
The main points in his article were:
Talaq and divorce are strongly condemned within Islam.
In case of difficulties within a marriage that the husband and wife cannot
solve by themselves, each shall appoint an arbitrator or conciliator to
resolve the matter.
( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two)
arbiters, one from his family and other from hers, if they wish for peace,
ALLAH will cause their reconciliation."
TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that
the word "biddat" itself means disapproval or something the prophet
never did or recommended.
Caliph Umer legitimized this form of divorce as an emergency measure.
Most Muslims believe that there shall be a interval of of one month
between each "taliq" pronouncement. If the during these
pronouncements, the wife disobeys the lawful order of her husband, he
may divorce her. During this time of breach they should take measures
to reconcile by themselves or with the help of their relatives etc. All
efforts as provided in the Qur'an and Sunna should be made to avoid a
breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many
nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and
Bangladesh. India still permits it." 1 In all such countries arbitration
councils and judicial interventions have been introduced to promote
reconciliation.

Offices staffed by female police are being established in Punjab state,
India to redress grievances, particularly by married women. These
facilities promote arbitration to help reconcile the couple. When all
efforts fail, the matter is referred for investigation and later to the court
for a trial.

I hope that people of the Islamic faith will learn from the above
discussion on divorce and become aware of the controversial practice
within Muslim marriages of the triple pronouncement of Talaq at one
occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that
practice will create proper respect, honor and adoption of the Holy
Qur'an and Sunna (Observing the path) of Prophet Mohammad.
May peace be upon Him and on us of Almighty ALLAH ! Ameen.

Concept of Marriage and Divorce under Muslim Law
Marriage or "Nikah" in Islamic law is a contract pure and simple needing no writing and
no scared rites. All that is necessary is offer and acceptance made in the presence and
hearing of two male or female witnesses and recording the factum of marriage in the
"Nikah" Register maintained in every mosque signed by the parties and attested by
witnesses. It is payable to the wife on the dissolution of marriage or death or divorce.
In India, there is no need to register the Muslim marriage, as there is no law requiring
registration.
There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu
Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband
the privilege of being able to discard his wife whenever he chooses to do so for reasons
good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the
right of divorce by the wife by virtue of the power delegated to her husband at the time
of marriage or even thereafter, Kula and Maturate are two forms of dissolution of
marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a
constructive divorce in which the husband swears not to have sexual intercourse with
his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which
the husband compares his wife with his mother or any other female within prohibited
degree. Lian is a divorce in which there is imputation of adultery to the wife by the
husband and the wife is entitled to file a suit for dissolution of marriage on the false
charge of adultery.
The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce
through court on the ground of, whereabouts of the husband are unknowns for 4 years,
failure of husband to provide for the maintenance of the wife for 2 years, sentence of
imprisonment of the husband for 7 years, failure to perform martial obligations,
impotency of the husband, or insanity of the husband, Repudiation of marriage by the
wife before attaining the of 18 years cruelty of the husband and any other ground
relevant at that point of time.

Muslim Marriage Laws
Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the
society of other without lawful ground.
No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of
judicial separation.
No provision in Mohammedan Law for declaration of marriage as nullity for it can be annulled,
though it may be repudiated by a Muslim wife and husband.
Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the
request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement).
Section 2 of the Dissolution of Muslim Marriage Act, 1939
Grounds for Muslim Woman.
1. Not heard for 4 years.
2. Failure to provide maintenance for two years.
3. Husband sentenced for 7 years imprisonment or upwards.
4. Failure to platform martial obligations for three years.
5. Impotency at the time of marriage and continuation.
6. Insanity for two years or suffering from leprosy or a virulent venereal
disease.
7. Marriage before attaining age of 15 years and repudiation before
attaining the age of 18 years.
8. Cruelty in the form of habitually assaulting, associating with women
of evil repute, force to lead an immoral life, interfering into the wifes
property, obstruction to observe her religious practice, not equally
treating with other wives etc.,

Dissolution of Muslim Marriages Act, 1939

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by
women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a
married Muslim woman on her marriage tie.
Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution
of marriage by woman married under Muslim law and to remove doubts as to the effect of the renunciation
of Islam by married Muslim woman on her marriage tie; it is hereby enacted as follows:
1. Short title and extent:
1. This Act may be called the Dissolution of Muslim Marriages Act, 1939.
2. It extends to the whole of India except the State of Jammu and Kashmir.
2. Grounds for decree for dissolution of marriage - A woman married under
Muslim law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:
that the whereabouts of the husband have not been known for a period of four
years;
that the husband has neglected or has failed to provide for her maintenance for
a period of two years;
that the husband has been sentenced to imprisonment for a period of seven
years or upwards;
that the husband has failed to perform , without reasonable cause , his marital
obligations for a period of three years;
that the husband has impotent at the time of the marriage and continues to be
so;
that the husband has been insane for a period of two years or is suffering from
leprosy or a virulent veneral disease;
that she, having been given in marriage by her father or other guardian before
she attained the age of fifteen years., repudiated the marriage before attaining
the age of eighteen years;
Provide that the marriage has not been consumated;
that the husband treas her with cruelty, that is to say.
a. habitually assaults her or makes her life miserable by cruelty of
conduct does not amount to physical ill-treatment, or
b. associates with women of evil repute or leads an infamous life, or
c. attempts to force her to lead an immoral life, or
d. disposes of her property or prevents her exercising her legal rights
over it, or
e. obstructs her in the observance of her religious profession or
practice, or
f. if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Qoran;
on any other ground which is recognised as valid for the dissolution of marriages under
Muslim law;
Provide that
a. no decree shall be passed on the ground (iii) until the sentence
has become final;
b. a decree passed on ground (i) shall not take effect for a period of
six months from the date of such decree, and if the husband
appears either in person or through an authorised agent within
that period and satisfied the Court that he is prepared to perform
his conjugal duties, the Court shall set aside the said decree; and
c. before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the husband
to satisfy the Court within a period of one year from the date of
such order that he has ceased to be impotent, and if the husband
so satisfies the Court within such period, no decree shall be
passed on the said ground.

3. Notice to be served on heirs of the husband, when the husbands whereabouts are not known -
In a suit to which clause (i) of Section 2 applies--
the names and addresses of the persons who would have been the heirs of the husband under
Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.
a. Notice of the suit shall be served on such persons, and
b. Such persons shall have the right to be heard in the suit;
Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he
or they are not heirs.
4. Effect of conversion to another faith - The renunciation of Islam by a
married muslim woman or her conversion to a faith other than Islam shall not by
itself operate to dissolve her marriage :
Provide that after such renunciation, or conversion, the woman shall be entitled to obtain a decree
for the dissolution of her marriage on any of the grounds mentioned in Section 2
Provided further that the provisions of this Section shall not apply to a woman converted to Islam
from some other faith who re-embraces her former faith.
5. Right to dower not to be affected - Nothing contained in this Act shall affect
any right which a married woman may have under Muslim law to her dower or
any part thereof on the dissolution of her marriage.
6. Repeal of Section 5 of Act 26 of 1937 - Repealed by the Repealing and
Amending Act, 1942 (25 of 1942) Sec. 2 and Sch. i.
Divorce Under Muslim Marriage Act India

Divorce By Husband / Wife

A Husband may divorce in the following manner-
Talaq: which is release from the marriage tie immediately or eventually.
Ila: where a husband of sound mind takes a vow that he will abstain
from all relationship from his wife.
Zihar: where husband sane and adult compares his wife to his mother or
any other female within the prohibited degrees.
A wife may divorce in the following manner:
Talaqetafwiz: talaq by the wife under the husbands delegated power.
Divorce By Judicial Decree Under Dissolution Of Muslim Marriage Act
1939.
Following are the grounds on which a marriage maybe dissolved under
the Marriage Act.
Lian: Where the wife is charged with adultery and the charge is false.She
can file a regular suit for dissolution of marriage as a mere application to
the court is not the proper procedure.
Fask: The cancellation, abolition, revocation, annulment. Before the
passing of the dissolution of Marriage Act, Muslim women could only
apply for the dissolution of their marriage under the doctrine of Fask.
Womans Right To Divorce Under The Dissolution Of Muslim Marriage Act.
1939
A Muslim woman may file for divorce on the following grounds:
That the whereabouts of the husband have not been known for a period
of 4 years
That the husband has neglected or has failed to provide for her
maintenance for a period of two years.
That the husband has been sentenced to imprisonment for a period of
seven years or upwards.
That the husband has failed to fulfill his marital obligation for a period of
three years.
That the husband has been insane for two years or is suffering from
leprosy or a virulent form of venereal disease.
That the husband was impotent at the time of marriage and continues to
be so.
The women, having been given in marriage by her father or other
guardian before she attained the age of 15 years, repudiated the
marriage before attaining the age of 18.




go to top




ISBN No: 97

Skip to main content
Skip to navigation
Accessibility Options

You are here:
1. Home
2. Citizens
3. Law and Order
4. Justice & Law
5. Personal Law

Personal Law
The people of India belong to different religions and faiths. They are governed by different
sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce,
succession, etc.
Marriage
Law relating to marriage and/or divorce has been codified in different enactments applicable
to people of different religions. These are:
The Converts' Marriage Dissolution Act, 1866
The Indian Divorce Act, 1869
The Indian Christian Marriage Act, 1872
The Kazis Act, 1880
The Anand Marriage Act, 1909
The Indian Succession Act, 1925
The Child Marriage Restraint Act, 1929
The Parsi Marriage and Divorce Act, 1936
The Dissolution of Muslim Marriage Act, 1939
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Foreign Marriage Act, 1969 and
The Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and
Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir. Persons
governed by this Act can specifically register marriage under the said Act even though they
are of different religious faiths. The Act also provides that the marriage celebrated under any
other form can also be registered under the Special Marriage Act, if it satisfies the
requirements of the Act. The section 4(b) (iii) of the Act was amended to omit the words "or
epilepsy.'' Sections 36 and 38 have been amended to provide that an application for alimony
pendente lite or the maintenance and education of minor children be disposed of within 60
days from the date of service of notice on the respondent.
An attempt has been made to codify customary law which is prevalent among Hindus by
enacting the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955, which extends to the
whole of India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in
territories to which the Act extends and those who are outside the said territories. It applies to
Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those
who are not Muslims, Christians, Parsis or Jews by religion. However, the Act does not apply
to members of any scheduled tribes unless the Central Government by notification in the
official Gazette otherwise directs.
Provisions in regard to divorce are contained in section 13 of the Hindu Marriage Act and
section 27 of the Special Marriage Act. Common ground on which divorce can be sought by
a husband or a wife under these Acts fall under these broad heads: Adultery, desertion,
cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard
of as alive for seven years.
As regards the Christian community, provisions relating to marriage and divorce are
contained in the Indian Christian Marriage Act, 1872 and in section 10 of the Indian Divorce
Act, 1869 respectively. Under that section the husband can seek divorce on grounds of
adultery on the part of his wife and the wife can seek divorce on the ground that the husband
has converted to another religion and has gone through marriage with another woman or has
been guilty of:
Incestuous adultery
Bigamy with adultery
Marriage with another woman with adultery
rape, sodomy or bestiality
Adultery coupled with such cruelty as without adultery would have entitled her to a divorce, a
mensa etoro (a system of divorce created by the Roman Catholic Church equivalent to
judicial separation on grounds of adultery, perverse practices, cruelty, heresy and apostasy)
and
Adultery coupled with desertion without reasonable excuse for two years or more.
In the Indian Divorce Act, 1869 comprehensive Amendments were made through the Indian
Divorce (Amendment) Act, 2001 (No. 51 of 2001) to remove discriminatory provisions
against women in the matter of Divorce. Further, sections 36 and 41 of the Act were amended
by the Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony
pendente lite or the maintenance and education of minor children be disposed of within 60
days from the date of service of notice on the respondent.
As regards Muslims, marriages are governed by the Mohammedan Law prevalent in the
country. As regards divorce, i.e., Talaq, a Muslim wife has a much restricted right to dissolve
her marriage. Unwritten and traditional law tried to ameliorate her position by permitting her
to see dissolution under the following forms:
Talaq-I-Tafwid: This is a form of delegated divorce. According to this, the husband
delegates his right to divorce in a marriage contract which may stipulate, inter alia, on his
taking another wife, the first wife has a right to divorce him
Khula: this is a dissolution of agreement between the parties to marriage on the wife's giving
some consideration to the husband for her release from marriage ties. Terms are a matter of
bargain and usually take the form of the wife giving up her mehr or a portion of it, and
Mubarat : this is divorce by mutual consent.
Further, by the Dissolution of Muslim Marriage Act, 1939, a Muslim wife has been given the
right to seek dissolution of her marriage on these grounds:
Whereabouts of the husband have not been known for a period of four years
Husband is not maintaining her for a period of two years
Imprisonment of husband for a period of seven years or more
Failure on the part of husband to perform his marital obligations, without a reasonable cause,
for a period of three years
Impotency of husband
Two-year long insanity
Suffering from leprosy or virulent venereal disease'
Marriage took place before she attained the age of 15 years and not consummated and
Cruelty.
The Parsi Marriage and Divorce Act, 1936 governs the matrimonial relations of Parsis. The
word 'Parsi' is defined in the Act as a Parsi Zoroastrian. A Zoroastrian is a person who
professes the Zoroastrian religion. It has a racial significance. Every marriage as well as
divorce under this Act is required to be registered in accordance with the procedure
prescribed in the Act. However, failure to fulfil requirements on that behalf does not make
marriage invalid. The Act provides only for monogamy. By the Parsi Marriage and Divorce
(Amendment) Act, 1988, scope of certain provisions of the Parsi Marriage and Divorce Act,
1936 have been enlarged so as to bring them in line with the Hindu Marriage Act, 1955.
Recently, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936 were amended by
the Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony
pendent lite or the maintenance and education of minor children be disposed of within 60
days from the date of service of notice on the wife or the husband as the case may be.
As for the matrimonial laws of Jews, there is no codified law in India. Even today, they are
governed by their religious laws. Jews do not regard marriage as a civil contract, but as a
relation between two persons involving very sacred duties. Marriage can be dissolved
through courts on grounds of adultery or cruelty. Marriages are monogamous.
Child Marriage
The Child Marriage Restraint Act, 1929, from 1 October 1978, provides that marriage age for
males will be 21 years and for females 18 years.
Adoption
Although there is no general law of adoption, it is permitted by the Hindu Adoption and
Maintenance Act, 1956 amongst Hindus and by custom amongst a few numerically
insignificant categories of persons. Since adoption is legal affiliation of a child, it forms the
subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and
have to approach the court under the Guardians and Wards Act, 1890. Muslims, Christians
and Parsis can take a child under the said Act only under foster care. Once a child under
foster care becomes major, he is free to break away all this connections. Besides, such a child
does not have the legal right of inheritance. Foreigners, who want to adopt Indian children,
have to approach the court under the aforesaid Act.
Hindu law relating to adoption has been amended and codified into the Hindu Adoptions and
Maintenance Act, 1956, under which a male or female Hindu having legal capacity, can take
a son or daughter in adoption. In dealing with the question of guardianship of a minor child,
as in other spheres of family law, there is no uniform law. Hindu Law, Muslim Law and the
Guardians and Wards Act, 1890 are three distinct legal systems which are prevalent. A
guardian may be a natural guardian, testamentary guardian or a guardian appointed by the
court. In deciding the question of guardianship two distinct things have to be taken into
account-person of the minor and his property. Often the same person is not entrusted with
both.
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of uncodified law, it has upheld the superior right
of father. It lays down that a child is a minor till the age of 18 years. Natural guardian for
both boys and unmarried girls is first the father and then the mother. Prior right of mother is
recognised only for the custody of children below five. In case of illegitimate children, the
mother has a better claim than the putative father. The act makes no distinction between the
person of the minor and his property and therefore guardianship implies control over both.
Under the Muslim Law, the father enjoys a dominant position. It also makes a distinction
between guardianship and custody. For guardianship, which has usually reference to
guardianship of property, according to Sunnis, the father is preferred and in his absence his
executor. If not executor has been appointed by the father, the guardianship passes on to the
paternal grandfather to take over responsibility and not that of the executor. Both schools,
however, agree that father while alive is the sole guardian. Mother is not recognised as a
natural guardian even after the death of the father.
As regards rights of a natural guardian, there is no doubt that father's right extends both to
property and person. Even when mother has the custody of minor child. Father's general right
of supervision and control remains. Father can, however, appoint mother as a testamentary
guardian. Thus, though mother may not be recognised as natural guardian, there is no
objection to her being appointed under the father's will.
Muslim law recognises that mother's right to custody of minor children (Hizanat) is an
absolute right. Even the father cannot deprive her of it. Misconduct is the only condition
which can deprive the mother of this right. As regards the age at which the right of mother to
custody terminates, the Shia school holds that mother's right to the Hizanat is only during the
period of rearing which ends when the child completes the age of two, whereas Hanafi school
extends the period till the minor son has reached the age of seven. In case of girls, Shia law
upholds mother's right till the girl reaches the age of seven and Hanafi school till she attains
puberty.
The general law relating to guardians and wards is contained in the Guardians and Wards
Act, 1890. It clearly lays down that father's right is primary and no other person can be
appointed unless the father is found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian under the Act.
Maintenance
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law.
Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance extends not
only to the wife and dependent children, but also to indigent parents and divorced wives.
Claims of the wife, etc., however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons was limited to Rs. 500 per month. But, this limit was
removed by the Code of Criminal Procedure (Amendment) Act, 2001 (No. 50 of 2001).
Inclusion of the right of maintenance under the Code of Criminal Procedure has the
advantage of making the remedy both speedy and cheap. However, divorced wives who have
received money payable under the customary personal law are not entitled to claim
maintenance under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But
she loses her right if she deviates from the path of chastity. Her right to maintenance is
codified in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the
husband. It also judges whether the wife is justified in living apart from husband. Justifiable
reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even
expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse
has no independent income for his or her support. The same principle will govern payment of
permanent maintenance.
Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986
protects rights of Muslim women who have been divorced by or have obtained divorce from
their husbands and provides for matters connected therewith or incidental thereto. This Act,
inter alia, provides that a divorced Muslim woman shall be entitled to:
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 children born to her before or after her divorce, a 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 amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to the Muslim Law and
All property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain
herself after the period of iddat, the magistrate shall order directing such of her relatives as
would be entitled to inherit her property on her death according to the Muslim Law and 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, standard of life enjoyed by her during her
marriage and means of such relatives and such maintenance shall be payable by such relatives
in proportion to the size of their inheritance of her property and at such periods as he may
specify in his order.
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 parents of such divorced woman to pay maintenance
to her.
In the absence of such relatives or where such relatives are not in a position to maintain her,
the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act,
1995 functioning in the area in which the woman resides, to pay such maintenance as
determined by him.
The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount that can be decreed by
the court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the
husband's net income. In fixing the quantum as permanent maintenance, the court will
determine what is just, bearing in mind the ability of husband to pay, wife's own assets and
conduct of the parties. The order will remain in force as long as wife remains chaste and
unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi Law and the same considerations are applied
in granting maintenance, both alimony pendente lite and permanent maintenance.
Succession
The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the
large number of laws which were in existence at that time. Laws governing succession to
Muslims and Hindus were excluded from the purview of the Act. While consolidating the law
in respect of succession, two schemes, one relating to succession to property of persons like
Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the
other relating to succession rights or Parsis, were adopted.
In the first scheme, applying to those other than Parsis, in the case of a person dying intestate
leaving behind a widow and lineal descendants, the widow would be entitled to a fixed share
of one-third of property and lineal descendants shall be entitled to the remaining two-third.
This law was amended subsequently with the object of improving rights of widows and it was
provided that where the intestate dies leaving behind his widows and it was provided that
where the intestate dies leaving behind his widow and no lineal descendant and the net value
of the estate does not exceed Rs 5,000, the widow would be entitled to the whole of this
property. Where the net value of the estate exceeds Rs 5,000 she is entitled to charge a sum of
Rs. 5,000 with interest at four per cent payment and in the residue, she is entitled to her share.
The Act imposes no restriction on the power of a person to will away his property.
Under the second scheme, the Act provides for Parsi intestate succession. By the Indian
Succession (Amendment) Act, 1991 (51 of 1991), the Act was amended to provide equal
shares for both sons and daughters in their parental properties, irrespective of the fact that it
was that of the father or that of the mother. It also enables the Parsis to bequeath their
property to religious or charitable purposes, etc., without any restrictions. In effect the
amended law provides that where a Parsi dies intestate leaving behind a widow or widower as
the case may be, and children, the property shall be divided so that the widow or widower
and each child receives equal share. Further, where a Parsi dies leaving behind one or both
parents in addition to children, or widow widower and children, the property shall be so
divided that the parent or each of the parents shall receive a share equal to half the share of
each child.
This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that
section 32 of the principal Act is discriminatory to widows and as such the proviso to section
32 was omitted to remove discrimination in this regard. Section 213 was also amended by
this amending Act to make Christians at par with other communities.
The law relating to intestate succession among Hindus is codified in the Hindu Succession
Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and
Kashmir. The remarkable features of the Act are the recognition of the right of women to
inherit property of an intestate equally with men and abolition of the life estate of female
heirs.
A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume
that Muslims are governed by Hanafi law unless it is established to be the contrary. Though
there are many features in common between Shia and Sunni schools, yet there are differences
in some respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-
Islamic customary law and preserves the superior position of male agnates. Unlike Hindu and
Christian laws, Muslim law restricts a person's right of testation. A Muslim can bequeath
only one-third of his estate. A bequest to a stranger is valid without the consent of heirs if it
does not exceed a third of the estate, but a bequest to an heir without the consent of other
heirs is invalid. Consent of heirs to a bequest must be secured after the succession has opened
and any consent given to a bequest during the lifetime of the testator can be retracted after his
death. Shia law allows Muslims the freedom of bequest within the disposable third.
Source: National Portal Content Management Team Reviewed on: 10-02-2011
8ae5dce9bbb820

Was this information useful?
Very useful Quite useful Unsure Not very useful Not at all useful
Take a moment to tell us how we could improve this page, but please don't leave any personal details
like your name or address. This is for comments only and you will not receive a response.

Submit


500
Characters Left
Why are we asking for this information?

Citizen:
Health
Education
Employment
Housing
Senior Citizen Corner
Law & Order
Travel & Tourism
Banking & Insurance
Taxes
Agriculture
Rural Indian
The Eco Warriors/The Green Corner
Co-operatives
Job Seekers
Differently Abled
Nagar Palikas
Global Navigation
Citizens
Business (External website that opens in a new window)
Overseas
Government
Know India
Sectors
Directories
Documents
Forms
Acts
Rules
Schemes
Tenders (External website that opens in a new window)
Search

Check the Monthly Cause List of...
View Online Judge Wise Daily Cause...
Retrieval Form for Parliamentary Question and...
Search for Press Releases and News...
submit online suggestions to the Vigilance...
View all How Do I?
Tell us What more could be there in this page of the portal! (Opens in a
new window)

Home
About the Portal
Site Map
Help
Add to Favorites (Refer the Help section)
Suggest to a Friend
Feedback
Contact Us
Link to Us
Terms of Use
Accessibility Statement
2005 NIC. All rights reserved. Last Updated till December 9, 201English
Franais

/




Search this site:
Search
form-Y-Jy3cSYX search_theme_fo

About
Our Voices
News
Action
Exhibit
Resources/Publications
Home Dossier 22
Dossier 22: Post Divorce Maintenance for Muslim Women and the
Islamist Discourse
in
Dossier Articles
South Asia
Bangladesh
Fundamentalisms
[law] Women and Law - WLUML Programme
Publication Author:
Dr Faustina Pereira
Date:
January 2000
Attachment Size
Attachment Size
Word Document 140.1 KB
number of pages:
168
ISBN/ISSN:
1560-9677
Introduction

We live in an era where relativism and humanism affect almost every facet of our lives. Not least
among these facets is the discourse of Islam vis a vis womens human rights. The importance of
such factors as relativism, humanism and gender sensitivity has not come about in a vacuum. It is
fairly easy to find in the history of the evolution of the Sharia, both ancient and recent (despite
what the champions of the theory of the closed doors of ijtihad propound), many useful
examples where many welcome and significant interpretation and interventions have taken place.
Unfortunately, however, only a handful of women interpreters have been active participants in this
evolutionary process. The dearth of women Islamists up until today point out that women are the
subject of the Sharia but not its legislators.[1]

Bangladesh, through some of its progressive judicial decisions has come on and off into the
limelight of the discourse on Islam and womens human rights.[2] I would take the liberty to term
progressive decisions as those which add to and complement, rather than take away, rights of
women in order for them to live as complete, independent individuals as understood by the
Constitution of Bangladesh and various international human rights instruments, particularly the
Universal Declaration of Human Rights and the CEDAW (Convention on the Elimination of all Forms
of Discrimination Against Women). Within the judicial arena a Matter of crucial importance today
for Muslim women around the world and in Bangladesh is the question of Muslim womens
entitlement to maintenance from their husbands after their divorce.

Maintenance Under Muslim Law and the Divorced Woman

It is unanimously agreed among Muslim scholars and jurists that the womans right to
maintenance arises upon marriage and that the wife is first in order of priority to this entitlement,
even before the children, parents and relatives. What is not so readily agreed upon however, is
whether this right is extendable after the marriage ends. It is the contention of a good number of
exponents of Islamic law that it is.[3]

A constructive meshing of the several views that exist on this point would help lawyers, jurists and
scholars to arrive at an agreeable plateau on the concept of post-divorce maintenance for divorced
Muslim women. A common point of departure for some experts on this issue is the meaning of the
term mataa or mut`ah.

Mataa/Mut'a, The Quran and the Principles of Justice and Reason

Literally taken, the word muta is gratification or a gift.[4] It has two distinct senses, one








being a form of temporary marriage, the other, in referring to mutat al-talaq or nafaqat al muta,
is a payment by a husband to his wife upon divorcing her.[5] Whether this gratification, gift or
payment has been intended as real compensation or simply a consolation to a divorced wife, and
if so, whether such compensation and or consolation is compulsory, has been a matter of
contention in classical and contemporary jurisprudence.

The Quran makes specific reference to provision for divorced women by way of maintenance. This
is in Sura II (Baqara), Verse 241.[6] However, in order to fully appreciate this provision, we need
to read the preceding and following verses along with this verse, and not in isolation from them, as
is the practice among some scholars. Verse 240 lays down the provisions for widows (a years
maintenance and residence), and then mentions women who leave the matrimonial residence on
their own. After this comes the provision for women who have not left on their own, that is, those
who have been divorced. The verse immediately after this provision, (242), begins Thus doth God
make clear his signs... making it clear that it is a continuation of the theme of the previous verse
(which specifies maintenance for divorced women). Therefore, on the one hand, the Quran is
making a specific provision, on the other hand is also reminding us that God continuous to provide
us signs for guidance so that we may comprehend and behave accordingly. A simple reading of the
Quran shows that the various stages a divorce takes place have been covered. Dissolution of
marriage, according to Muslim law, comes about in two ways: death or divorce. A simple reading
of Verses 240 and 241 show that the Quran has made provision for women who suffer either
widowhood or divorce. Whatever discussion takes place as to the nature of this provision, it cannot
discard the simple meaning of these two verses. The Quran, by reminding us that God provides us
signs to understand, also helps us to conduct our journey of interpretation and contextualisation.
Surely this understanding ought be based on the precepts of justice, reason and sustenance of the
spirit of the Quran. Here we may want to remind ourselves of the observations made in the Report
of the Commission on Marriage and Family Laws,[7] Islam very justly claims to be a simple and
liberal creed... . The Quran says that previous societies perished because they were burdened with
too much inflexible law and too much unnecessary ritual... . No progressive legislation is possible if








Muslim assemblies remain only interpreters and blind adherents of ancient schools of law.[8]

Despite what this Commission had to say in 1956, and before that prior to the Dissolution of
Muslim Marriages Act in 1939 (where the Maliki School, rather than the Hanafi School of law was
adopted), today most of the discussion on post divorce maintenance, which should have been
fairly easy to garner from the Quran in the first place, has been filtered to whether mataa is
optional or obligatory, whether it is a gift or a compensation. The 1956 Commission, on
questioning its members and hundreds of Muslims, whether husbands should pay maintenance to
the divorced wife for life or till her remarriage, part of the answer reads, a large number of
middle aged women who are being divorced without rhyme or reason should not be thrown on the
street without a roof over their heads and without any means of sustaining themselves and their
children.[9]

South Asia, Mataa and Judicial Decisions

The discourse on mataa and its import on maintenance and womens rights under family law, is
not new in our sub-continent. Only recently in Pakistan a case1[10] raised the question whether
the wifes maintenance is a gratuity. I have already stated above that the 1956 Commission on
Marriage and Family Law took into consideration the plight of women arbitrarily divorced and
rendered destitute, and recommended that Courts should have the jurisdiction to order a husband
to pay maintenance to his divorced wife for her life or till she remarried.

Looking back into our history, it is clear to see that there was never really a forum in which these
questions could be argued. More than a century ago, the Calcutta High Court, in the case of Abdur
Rohoman vs. Sakhina,[11] finding itself unable to sanction enforcement of a maintenance order
issued in favour of a Muslim divorced wife, observed, The fact that the power of divorce, given by









the Muhammadan law, may be so exercised as to defeat the intention of the legislature as
expressed in... [The Presidency Magistrates Act] and other similar enactments, may go to show
that further legislation is required, but it cannot affect the [secular, statutory] law as it stands. It
is clear to see that the magistrates court did not have the authority to decide cases according to
Muslim law. It may be argued that these issues could be raised in ordinary civil courts. But civil
suits do not help the poor, divorced women who desperately need monetary sustenance for
themselves and their children, instead of complicated, expensive and time consuming proceedings.

Prior to the Muslim Family Laws Ordinance on 1961, Hanafi Muslim women had no forum to raise
the question of recovery of arrears of maintenance. Under this Ordinance, the Arbitration Council
formed could and did deal with the question and found in favour of womens claims. However, we
must note that the Ordinance, despite what was recommended by the 1956 Commission, only
comprehended maintenance for married women, and not mataa for divorced women. It has
already been pointed out that jurists are in agreement that it is permissible to follow a non-Hanafi
school when Hanafi law does not provide relief. This is how our 1961 Ordinance came to be based
on Maliki law. Thus today cases coming before Bangladeshi courts should not have a difficulty in
finding a forum to provide relief to divorced women. For example, in Gul Bibi v. Muhammad
Saleem[12] the argument was based on justice and common sense and the position that it is
possible to borrow from another school of Muslim law when one school does not provide relief.
Thus the Court held According to Shiah and Shafi law the wife is entitled to maintenance
notwithstanding the fact that she was allowed to get into arrears without having the amount fixed
by the Court, or by agreement with the husband...

In the instant case the parties admittedly follow Hanafi school of thought... However, as some
thinkers of Islam do favour the positive view and such view is also consistent with reason, logic
and common sense, its adoption as a rule in case of such sects which do not strictly follow that
school of thought, would not be unjustified.

Today we have the Family Courts Ordinance of 1985, which not only has a streamlined procedure
but also under which women have to pay only their minimal fees. Now that the question of mataa
- post divorce maintenance, has been raised before the Appellate Division of Bangladesh, we can
be hope that the question has at last found an appropriate forum for decision.

Some Muslim Majority Countries Where Women Enjoy Mataa Prior to codification, Egyptian
personal law had been primarily based on the Hanafi School. Judges found themselves being



forced to apply manifestly unjust rulings in cases of maintenance and divorce.[13] Thus Egypt
adopted some of the principles of Maliki and Shafi Schools in cases of maintenance and some other
matters. Jordanian Courts consider compensation for divorce a financial right of the divorced wife
which is not forfeit in the case of death of the husband.[14] The Egyptian and Jordanian laws
determine cases where divorce is by the unilateral will of the husband and not by mutual
agreement. Both laws stipulate mataa or muta, in addition to maintenance for a divorced women
after consummation.

The Malaysian Islamic Family Law as regards post divorce maintenance is established on the Sura
II Verse 241.The Islamic Family Law (Federal Territory) Act 1984 provides, in addition to the
womans right to maintenance, that a woman who has been divorced without just cause by her
husband may apply to the Sharia Court for muta and the Court may, after hearing the parties and
after being satisfied that the woman has been divorced without just cause, order the husband to
pay such sum as may be fair according to the hukum syara, which is based on Sura II Verse 241
of the Quran.

The Sharia Courts in Malaysia have rightly highlighted the distinction between the iddah
maintenance and muta or post divorce maintenance. Many scholars confuse iddah with divorce. In
fact, iddah is a continuation of the marriage, being a waiting period during which a divorce
pronouncement may be revoked. Thus during this time the husband and wife continue to be within
a legally married state and therefore the question of muta at this stage does not arise. During the
iddah the woman is entitled to maintenance as a wife. It is after the completion of the idda period
that the divorce becomes effective and thus the question of post divorce maintenance where the
divorce was arbitrarily brought by the husband.

Moreover, although not spelled out, a very logical distinction arises from the Malaysian, Jordanian
and Egyptian situation. If the Quran has recognized two forms of dissolution (divorce and death)
and has provided very important rights (inheritance etc.) to the woman divorced by death, would
not it be logical to think that the Quran had manifestly intended that the woman divorced during
the life time of the husband would also be entitled to some form of compensation? In both cases
we are talking about a right which arises upon dissolution. It is therefore redundant whether the
spouse divorcing is dead or alive.






Concluding Observations

We must remember that the main reason issues such as maintenance rights for divorced women in
particular and reform proposals in personal laws in general, is taking place because Bangladesh,
along with several other countries, Muslim and non-Muslim alike, is creating various forums in
which these issues beg dealing with. It would be frivolous to say, as some sections of society do,
that these issues are now coming up because of western/feminist/un-Islamic influences on our
society. Significant sections of the Hanafi ummah have adopted non-Hanafi interpretation of mataa
as well as important questions of Muslim womens rights. Bangladesh, which has a predominance
of Hanafi adherents, implements Maliki based Muslim laws too. This by itself should be enough for
us to realise that where borrowing from one school would be more consonant with principles of
justice, fairness and equity, it would be erroneous not to do so.


FOOTNOTES

[1]The Muted Voices of Women Interpreters, in Faith and Freedom - Womens Human Rights in the
Muslim World 61-77 ( Mahnaz Afkhami, ed., 1995).

[2] See, for example, Nelly Zaman v. Ghiyasuddin, 34 DLR (1982), Jamila Khatun v. Rustom Ali,
48 DLR (1996), Jesmin v. Muhammad Elias, 17 BLD (1997), Muhammad Hefzur Rahman v.
Shamsun Nahar Begum, 15 BLD (1995), Muhammad Serajul Islam v. Musammat Helana Begum,
48 DLR.

[3] See, for example, the works on this subject of Dawoud El-Alami, Abdullahi Ahmed An-Naim,
Lucy Carroll, Asghar Ali Engineer, Ahmad Ibrahim, Daniyal Latifi, et al.








[4] Dawoud El-Alami, Mutat al-Talaq under Egyptian and Jordanian Law, in 2 Yearbook of Islamic
and Middle Eastern Law 54 (Cotran and Mallat, eds. 1995).

[5] Ibid.

[6] The Holy Quran, English translation by A. Abdullah Yusuf Ali. Sura II, Verse 240: Those of you
who die and leave widows should bequeath for their widows a years maintenance; But if they
leave (the residence) there is no blame on you for what they do with themselves, provided it is
reasonable. And God is exalted in Power, Wise. Sura II Verse 241: For divorced women
maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous. Sura
II Verse 242 : Thus doth God make clear His signs to you: in order that ye may understand.

[7] Gazette of Pakistan, Extraordinary, 20 June, 1956.

[8] Ibid., at 1231.

[9] Ibid., at 1215.

[10] Iqbal Hussain v. Deputy Collector, PLD 1995 Lah 381.















[11] ILR 5 Cal 558, 562 (1879).

[12] PLD 1978 Quetta 117.

[13] Supra note ... at 55.

[14] Supra note ... at 58.
Dossier 22: Palestinian womens model parliamentupDossier 22: The Need for Codification and
Reform in Muslim Personal Law in India
Related News
Sultan of Brunei introduces tough Islamic punishments
Tunisia's fight against fundamentalism: an interview with Amel Grami
"Your Fatwa Does Not Apply Here": the human rights struggle against Muslim fundamentalism.
Bangladesh: Slum dwellers face higher risk of domestic violence
Nigeria: Sharia's Rise in Nigeria Incited Stoning Sentences
Related Actions
Urgent Action: Zahra and Ali in Imminent Danger of Stoning!
Pakistan: Killing of NGO worker Farida Afridi in Jamrud Tehsil of Khyber Agency
Declaration of the Senegalese Feminist Forum statement during the Reflection on the Malian
Crisis Meeting










UPDATE: Saudi Arabia: Al Sharif released, 17 June Women2Drive campaign continues
Saudi Arabia: Call for release of activist challenging ban on women drivers
Relevant Resources
Living with insecurity: Marginalization and sexual violence against women in north and east Sri
Lanka
Dossier 30-31: The Struggle for Secularism in Europe and North America
Towards a Future without Fundamentalisms
Feminists on the Frontline: AWID Case Studies of Resisting Fundamentalisms
FES publication on Religious Fundamentalisms in Asia
Dossier 22
Dossier 22: In Memory of Begum Sufia Kamal, the Unrelenting Voice for Democracy,
Secularism and Womens rights in Bangladesh
Dossier 22: Inching Toward Equality: Recent Developments in Indonesian Inheritance Law
Dossier 22: Jihad International Inc.
Dossier 22: Pakistan - Attempt to Exploit Religion for Political Gain
Dossier 22: Pakistan: Religious Intolerance Rides Over Freedoms
Dossier 22: Palestinian womens model parliament
Dossier 22: Post Divorce Maintenance for Muslim Women and the Islamist Discourse
Dossier 22: The Need for Codification and Reform in Muslim Personal Law in India
Dossier 22: The Need to Unify Personal Status Laws in Arab Countries
Dossier 22: Traditional Stereotypes and Womens Problems in Post-Soviet Uzbekistan: A
Survey of the Mass Media
Dossier 22: Under Siege in Jerusalem: Three Women Caught Between Two Cultures
Dossier 22: Communalisation of Muslims in Sri Lanka - An Historical Perspective
Dossier 22: Exploring the Context of Womens Sexuality in Eastern Turkey
Dossier 22: Huge rise in forced marriages (UK)
Donate to WLUML
Copyright Notice
Privacy Policy
Contact WLUML
Log in
Facebook WLUML Page
2


Resources: Family laws in Muslim
majority and minority contexts
This page contains some examples of laws from Muslim
countries and communities, whether majority or
minority, that support the model Muslim marriage
contract.
The information is mostly drawn from two publications
which are based on research by local legal experts and
activists in the Muslim community.
Knowing Our Rights: Women, family, laws
and customs in the Muslim world
Home Truths: A Global Report on Equality in
the Muslim Family
The topics covered by this page include:
1. Written Marriage Contracts & Registration of
Marriage
2. The Right of an Adult Muslim Woman to Contract
her own Marriage/the issue of wali
3. Gender Neutral Witnesses to a Marriage
4. Equal Rights and Responsibilities of Husband and
Wife in Marriage

5. Giving Wives a Fair Share of Marital Property
6. A Complete Ban on Polygamy
7. Including Talaq-i-Tafwid (delegated divorce) in the
Marriage Contract
8. The Rights of the Spouses to Add Other Conditions to
the Marriage Contract

1. Written Marriage Contracts &
Registration of Marriage
The vast majority of women live in situations where
womens marital rights are not as well protected as
mens. As the more vulnerable party in a marriage, a
woman benefits from documentation of the marriage
because it increases her chances of being able to access
the inherent rights of a wife in a Muslim marriage as
well as any rights the bride may have negotiated with
the groom in the marriage contract.
With changes in society, earlier mechanisms of social
control have broken down: families and communities
can no longer bring effective pressure on men who do
not respect their wives. Oral promises are nowadays not
enough to ensure a smooth marriage. Women who lack
marriage documents are even more vulnerable because
oral contracts are difficult to enforce: who can prove she
was married, when and with what contractual
agreements? People move houses and towns, witnesses
and the imam who celebrated the marriage are not
always easy to trace.
In most Muslim countries, a marriage has to be
registered and there are penalties such as light prison
sentences and/or fines for failure to register the
marriage. For example, in 1974 Bangladesh
strengthened the marriage registration laws by passing
the Muslim Marriages and Divorces Registration Act. In
2000 in Pakistan, the Federal Shariat Court upheld the
registration of marriages as Islamic (Allah Rakha and
another vs. Federation of Pakistan and Others PLD
2000 FSC 1). This shows how important marriage
registration is in Muslim societies outside Britain.
Muslim family laws for example in Bangladesh and
Pakistan also regard the person who solemnized the
marriage as responsible for registration.
The following are some of the countries whose laws
require written marriage contracts and registration of
marriage:
Algeria, Bangladesh, Egypt, Gambia (marriages under
Muslim laws), Indonesia, Iran, Malaysia, Morocco,
Pakistan, Philippines, Senegal, Sudan, Tunisia, and
Turkey.

2. The Right of an Adult Muslim Woman to
Contract her own Marriage
In Tunisia, under Article 9 of 1956 Code du Statut
Personnel (Personal Status Code), both the husband and
wife have the right to contract their marriage themselves
or appoint proxies, and Article 3 regarding validity does
not require the consent of the wali. Under Article 25 of
the 2004 Moudawana (Moroccos Muslim family law),
a woman of legal majority may conclude her marriage
herself, or delegate this power to her father or one of her
relatives. In other words, both Morocco and Tunisias
laws have made wali optional.
The laws that govern Muslims in the following
countries do not require a wali at all for an adult Muslim
woman getting married: Bangladesh, India, Kyrgyzstan,
Pakistan, Senegal, Turkey, Uzbekistan. In Pakistan, the
question of whether a Muslim marriage is valid without
a wali has often been debated in the courts and the
higher courts have consistently over many decades
upheld an adult Muslim womans right to choice in
marriage. Some of the most prominent cases include
Mst. Humera Mehmood vs. The State and Others PLD
1999 Lahore 494 and Hafiz Abdul Waheed vs. Miss
Asma Jehangir and Another PLD 1997 Lahore 301.
Even in countries where the law requires a wali, there
are different interpretations about the walis role. For
example, in Sudans law a wali is called a vakil and his
role is simply as an agent whose duty is to convey the
womans wishes.
In Malaysia, it is now very common for Muslim judges
to authorise marriages opposed by the normal wali if the
couple moves to another town. Section 13 of Malaysias
Islamic Family Law (Federal Territories) Act 1984
(which was intended as a model for each of Malaysias
13 States) allows dispensation of the walis consent in
favour of consent by the court if there are valid grounds
for dispensation, after due inquiry in the presence of all
parties concerned. In Azizah vs. Mat (1976) 2 Jurnal
Hukum 251, the father of a young woman refused to
give his consent to her marriage, wanting her to earn a
living first. On her application to the Registrar, he (the
Registrar) transferred the marriage guardianship to a
wali raja (meaning the court). Her father was allowed to
give evidence, and it transpired that his refusal to give
consent was based on the fact that he wanted
compensation for maintaining her. The consent to the
marriage was given by the court.
Most countries do not require a wali if the woman is re-
marrying.

3. Gender Neutral Witnesses to a Marriage
The role of the witnesses is to testify to essentials of the
marriage: the age, capacity and consent of the parties, as
well as the fixing of mahr and any other agreed
conditions to the marriage. In essence the role of the
witness is to protect against the violation of rights.
ince women are generally the more vulnerable party in a
marriage, witnesses are particularly important for them.
For example, witnesses should act as a protection
against forced marriage by attesting to the age and
consent of the spouses. If there is any subsequent
dispute about the existence of a marriage, witnesses can
attest to the validity of the marriage (or at least to the
good faith of one or both of the spouses) so that a
woman would be able to retain her economic rights and
ensure the legal paternity of her children.
Marriage laws and procedural laws for Muslims in the
following countries do not specify the religion or gender
of witnesses for marriage; they just require two adult
witnesses.
Article 9 of Algerias Code de la Famille (Family
Code); Article 2(1) of Indonesias Marriage Act and
Article 14 of the Compilation of Islamic Laws; Article
13(4) of Moroccos Moudawana; Article 15 of the Code
of Muslim Personal Law in the Philippines; Tunisias
Code of Civil Procedure; Article 147(1) of Senegals
Code de la Famille (Family Code); Turkeys Civil
Code.

4. Equal Rights and Responsibilities of
Husband and Wife in Marriage
In 2001 Turkey, which is a Muslim-majority country,
amended its Civil Code which regulates marriage. The
new Civil Code has taken a new approach to the family
and womens role in the family, and under Article 41,
the family is based on equality between the spouses.
The old legal approach, which assigned women a
legislatively subordinate position in the family, with
rights and duties defined in respect to the husband, has
been abandoned in favour of an approach that defines
the family as a union based on equal partnership. This
new approach is reflected in the language of the new
Code. The terms the wife and the husband are
replaced by the spouses. The new approach to the
family is reflected in several other changes as well:
The husband is no longer the head of the
family; spouses are equal partners, jointly
running the matrimonial union with equal
decision-making power);
Spouses have equal rights over the family
residence, and deciding where to live;
Spouses have equal rights over property
acquired during the marriage;
Spouses have equal rights to enter into work;
Spouses have equal powers to represent the
family.
Reforms since 2004 in Morocco, and to a lesser extent
in Algeria in 2005, have focused on rebalancing the
marital relationship, ending the gender discriminatory
nature of the listed rights and responsibilities. Both laws
require the couple to consult mutually on family
planning and the running of the household. In the new
2004 Moudawana (family law) of Morocco, spouses
have mutual duties and rights, including: cohabitation,
mutual fidelity, respect and affection, the preservation
of the interests of the family; mutual inheritance; the
wifes assuming with the husband responsibility for
managing household affairs and the childrens
education; consultation on decisions concerning the
management of family affairs, children and family
planning; good relations with each others relatives.
Indonesia is the country with the largest population of
Muslims. Its marriage law states that the rights and
responsibilities of the wife and husband are equivalent
in the life of the household and in the social
intercourse in society. Spouses also have a duty of
mutual support.
In some countries that do not have Muslim family laws
but where there is either a majority or very significant
minority of Muslims, the law may specify that the
spouses have the right to mutual maintenance (as in the
Central Asian Republics), or the duties of equally shared
consortium which includes shared housework, child
care, love, affection and sex, (as in Fiji).

5. Giving Wives a Fair Share of Marital
Property
Marital property means the goods and property that the
couple acquired (whether purchased by one or other
spouse) during the marriage, and any improvements
made to the spouses separate property that was done
through joint efforts during the marriage. The laws in
many Muslim-majority and minority countries often
allow a couple to negotiate in the marriage contract how
this property is to be controlled during the marriage or
divided upon divorce. This is called deciding a property
regime. There are different types of arrangements, and
a couple should choose one that suits their
circumstances (for a detailed discussion, see Knowing
Our Rights: Women, family, laws and customs in the
Muslim world)
Fortunately, Muslim laws in many countries permit this
kind of negotiation. For example, Moroccos new
Moudawana requires the two officials attending the
marriage to inform the parties of provisions permitting
the specification of a property regime. This is designed
to address womens ignorance of the possibility of
negotiating a property regime.
The following are some extracts from the above book
about the laws in different Muslim countries regarding
property in marriage.
Getting a Fair Share: Muslim Women in Singapore
In addition to idda maintenance, mataa (compensation
for a divorced wife see Holy Quran 2:241) and the
recovery of mahr, women married under Muslim laws
in Singapore are frequently able to recover a substantial
share of matrimonial assets, even when they have not
contributed to the familys income through paid
employment.
Following amendments to the Administration of Muslim
Law Act 1966 (no. 27/66) in 1999, the definition of
matrimonial assets was clarified and the factors that the
courts could take into account while deciding the
division of these assets was also elaborated.
With the 1999 Amendments, the factors that are to be
taken into account are (Section 52(8)(a) ADMLA):
(a) The extent of contribution made by each party in
money, property or work towards acquiring, improving
or maintaining the property.
(b) Any debt owing or obligation incurred or undertaken
by either party for their joint benefit or for the benefit of
any child of the marriage.
(c) The needs of the children, if any.
(d) The extent of contributions made by each party to
the welfare of the family, including looking after the
home or caring for the family or any aged or infirm
relative or dependent of either party.
(e) Any agreement between the parties with respect to
the ownership and division of the property made in
contemplation of divorce.
(f) Any period of rent free occupation or other benefit
enjoyed by one party in the matrimonial home to the
exclusion of the other party.
(g) The giving of assistance or support by one party to
the other party (whether or not of a material kind)
including the giving of assistance or support which aids
the other party in the carrying on of his or her
occupation or business.
(h) The income, earning capacity, property and other
financial resources which each of the parties has or is
likely to have in the foreseeable future.
(i) The financial needs, obligations and responsibilities
which each of the parties has or is likely to have in the
foreseeable future.
(j) The standard of living enjoyed by the family before
the breakdown of the marriage.
(k) The age of each party and the duration of the
marriage.
(l) Any physical or mental disability of either of the
parties, the value to either of the parties of any benefit
(such as a pension) which, by reason of the dissolution
of the marriage, that party will lose the chance of
acquiring.
The 1999 Amendment defines matrimonial assets as
(Section 52(14) ADMLA):
(a) Any asset acquired before the marriage by one party
or both parties to the marriage which had been
substantially improved during the marriage by the other
party or by both parties to the marriage.
(b) Any asset of any nature acquired during the marriage
by one party or both parties to the marriage.
However, this does not include any asset (not being the
matrimonial home) that has been acquired by one party
at any time by gift or inheritance and that has not been
substantially improved during the marriage by the other
party or by both parties to the marriage.
Malaysia: Under Section 58 of the Islamic Family Law
Act, following divorce the court has power to order the
division of assets or the division of the proceeds of the
sale of any assets acquired by joint effort of the parties
during a marriage. Under Section 58(2), the court must
incline toward an equitable division, taking into
account: the extent of the contributions made by each
party in money, labour, or property toward acquisition
of the assets; debts incurred by either party for their
joint benefit; and the needs of any minor children of the
marriage. Under Section 58(3) and (4), assets acquired
by the sole effort of one party to the marriage may also
be divided, taking into account: the extent of the
contribution to the welfare of the family made by the
party who did not acquire the assets and the needs of
any minor children of the family. However, the division
must be reasonable, and the party by whose efforts
assets were acquired must receive a greater proportion.
Under Section 58(5) assets to be divided can include
assets owned before the marriage by one party but
which have been substantially improved during the
marriage by either the other party or by the parties joint
effort.
Iran: The standard marriage contract includes an
optional clause stating that wealth accumulated during
the marriage will be divided in half on divorce.
Philippines: Article 38 of the Code of Muslim Personal
Law provides that in the absence of any other written
agreement between the spouses (either made in the
marriage contract or subsequently), the couple shall be
governed by a complete separation of property regime.
Under Article 41, each spouse retains whatever property
they brought in to the marriage, all income from
employment or trade, any money inherited during the
marriage, any income from their personal property, and
nuptial gifts; the wife retains her mahr. Under Article
43, each spouse also retains that household property
which is customarily used by that spouse. Couples may
choose a regime of absolute community of property,
which would mean that on divorce all property brought
into the marriage and acquired during the marriage is to
be divided equally upon dissolution.
Morocco: Article 49 of the new Moudawana establishes
a separate property regime as the norm but permits the
spouses to make a written agreement on the investment
and distribution of assets acquired during the marriage.
Informing spouses of these provisions is part of the
duties of the adouls (public notaries) present at the
marriage. In the absence of such an agreement, recourse
is made to general standards of evidence also taking into
account the work of each spouse, the efforts made and
the responsibilities assumed in the development of the
family assets.
Turkey: Under Article 186-237 of the Civil Code, a
couple has the option of choosing between three
different property regimes upon marriage: separation of
goods (each party owns the goods and property that are
registered in his/her name prior to and throughout the
course of the marriage), union of goods (all goods and
property owned by each party prior to and during the
marriage are considered joint property of the couple);
aggregation of goods (through a prenuptial agreement
both parties decide upon which goods will constitute the
joint property of the couple). Under Article 170, where a
couple has not specified a property regime applicable to
their marriage union, they are automatically considered
to have accepted the separation of goods property
regime.

6. A Complete Ban on Polygamy
A few Muslim-majority countries have completely
outlawed polygamy. These include: Tunisia, Turkey,
and Uzbekistan. Algerias considerably amended Code
de la Famille (Family Code) and Moroccos new
Moudawana (Family Law) (Articles 40-46) have both
introduced greater regulation, extremely strict in the
case of Morocco. New or amended family codes
awaiting formal introduction in some francophone West
African countries (Benin, Guinea, Mali, Niger) all seek
to regulate polygamy.
In Tunisia under Article 18 of the Code du Statut
Personnel (Code of Personal Status), any man who
contracts a polygamous marriage is punishable with one
year of imprisonment or a fine of 240,000 Tunisian
francs or both. These provisions apply even if the new
marriage is registered and even if the man continues to
live with the first wife. A wife who knowingly enters a
polygamous marriage is liable to the same punishments.
In Bangladesh, a 1999 judgment by the High Court
Division strongly discouraged polygamy and ordered
that a recommendation be sent to the Law Ministry so
that they could scrutinize whether or not polygamy
could actually be banned. The recommendation
suggested that the same line of reasoning used in
Tunisia to ban polygamy could be used in Bangladesh
(Elias vs. Jesmin Sultana, 51 DLR (AD) (1999).

7. Including of Talaq-i-Tafwid (delegated
divorce) in the Marriage Contract
In systems based on Muslim laws, a husband may
delegate his unilateral right to talaq to his wife. He still
retains his right of talaq but then also permits his wife to
pronounce talaq upon herself. This agreement can be
made through the marriage contract, or it can be
negotiated subsequently. Talaqi-tafwid is also
commonly referred to in Arabic-speaking communities
as esma, which simply means the permission, or the
option.
In the absence of legislation and social practices that
grant women equity and security in their marriages,
talaq-i-tafwid can correct that part of the imbalance in
marriage that is caused by a husbands power to
unilaterally terminate the marriage.
Since at least the 16th century, contracts containing
talaq-i-tafwid have been recognized in the Indian
subcontinent. The topic is thoroughly discussed in local
Hanafi texts, and a whole chapter is devoted to this
subject in the Fatawa-e-Alamgiri, which was prepared
during Mughal Emperor Aurganzebs rule (1658-1707)
and promulgated by the Mughal Emperor at that time.
The possibility of delegating talaq to the wife is
specifically recognized in the Muslim laws of countries
such as: Bangladesh, Iraq, Jordan, Morocco, Pakistan,
Philippines, and Syria. Other systems may recognize
talaq-i-tafwid also if spouses are permitted to negotiate
rights through their marriage.
Bangladesh & Pakistan: In Bangladesh talaq tafwid
procedures are governed by Section 6 of the Muslim
Marriage & Divorce Registration Act and in Pakistan by
Section 8 of the Muslim Family Laws Ordinance. An
optional clause in the standard marriage contract form in
both countries asks whether or not the husband has
delegated the power of talaq to the wife, and, if so,
under what conditions.
India: Although Muslim family laws are not codified
(written down) in India, the courts do recognize talaq
tafwid. A relevant case is Mangila Bibi vs. Noor
Hossain All India Reporter, 1992 Calcutta 92
Philippines: Under Article 51 of the Code of Muslim
Personal Law, if the husband has delegated (tafwid) to
the wife the right to effect a talaq (at the time of the
celebration of the marriage or thereafter), she may
repudiate the marriage and the repudiation would have
the same effect as if it were pronounced by the husband
himself.
Iraq: Divorce terminates the bond of marriage when
pronounced by the husband or by the wife who has been
assigned or delegated an authority in that regard or by
the Qadi. No divorce shall be effective except when
pronounced through the legally prescribed formula (The
Code of Personal Status of 1959 (amended in 1980),
Section 34).
Morocco: Under Article 89, the new Moudawana
clarifies that procedure for talaq tafwid follows the
procedure for talaq and that the court shall rule upon the
financial rights of the wife and children as for talaq. A
husband cannot prevent his wife from exercising the
right of repudiation that he has earlier delegated to her.

8. The Rights of the Spouses to Add Other
Conditions to the Marriage Contract
Muslim marriage is a contract, and therefore the spouses
have the right to negotiate conditions to the marriage, as
long as they are not contrary to the meaning of marriage
(for example, that the spouses will live separately). This
right is recognised in the laws of many Muslim
countries and communities.
In Muslim communities across the world, couples
negotiate a wide range of conditions to the marriage
such as levels of maintenance, place of residence,
employment options, educational options, freedom to
travel or visit relatives, division of household
responsibilities, standards of living, breastfeeding
options, control of property, restrictions on polygamy,
access to divorce, and standards for the husbands
emotional treatment of the wife. Women may negotiate
where they will live to ensure that they will not have to
live far away from their families. They can also ensure
that the couple will live separately from the husbands
family (as is often negotiated in Saudi Arabia). For
example, spouses may negotiate the terms of study for
both partners and include in these further conditions to
accommodate the time and resources required for their
studies (Egypt, Jordan).
Negotiating household responsibilities can help to
ensure an equitable sharing when both partners are
employed. Negotiations on this issue may also serve to
address and challenge assumptions regarding gender
roles in the household.
In Saudi Arabia negotiations occur amongst the men,
but there is significant room for the mothers and the
bride to intervene, and negotiations are vigorously and
seriously attended to. In Egypt the bride is party to the
negotiations and can give significant input into the
process.
In contexts where negotiations take place long before
the wedding, rather than actually at the time of the
marriage ceremony, there may be more space for
negotiators to address controversial conditions and
convince any unwilling party. This does not, however,
prevent others from obstructing the agreed conditions at
the last moment. It is not uncommon for imams who are
solemnizing a marriage to ignore or object to conditions
that the couple and their families have agreed to.
Most negotiations occur prior to a marriage. However, it
is socially or legally possible for new conditions to be
attached to an existing marriage contract, provided these
are written (as opposed to oral) and attested to by
witnesses.
The following are some extracts from Knowing Our
Rights: Women, family, laws and customs in the Muslim
world, about the laws in different Muslim countries
regarding conditions in the marriage contract.
Bangladesh & Pakistan: The standard marriage
contract under the Rules of the MFLO carries provisions
for talaq tafwid and allows the couple to enter any
restrictions on the husbands right of divorce (columns
18 & 19). There is no restriction on including any
additional conditions, provided there is mutual
agreement between the two parties. Column 17 allows
for any special conditions. Column 20 allows for
recording the details of any other documented
stipulations relating to dower, maintenance, wifes
pocket money, etc. Case law establishes which
conditions can be negotiated. Custody of children may
be negotiated, but no such negotiation will have legal
effect, as the court will decide custody on the basis of
the childs welfare (rather than on the basis of
contractual conditions).
In Pakistan courts may accept contractual stipulations
even when these deviate from traditional Muslim
jurisprudence. For example, if lifelong maintenance for
a divorced wife has been incorporated as a stipulation in
the marriage contract, courts have supported the wifes
right to such maintenance. In one famous pre-
Independence case (which is still applicable in
Bangladesh, India, and Pakistan), the court ruled that
the marital rights ended with the divorce, but the
contract subsists until the plaintiff dies or breaks it
(Muhammad Muinuddin vs. Jamal Fatima, 1921, 43
All.650).
Iran: Article 1119 of the Civil Code allows either
spouse to negotiate conditions to the marriage contract,
provided the conditions do not go against the principles
of marriage, and the standard marriage contract has
room for additional conditions such as unconditional
talaq tafwid. It is not legally valid to impose conditions
that the law assumes encroach on the rights of third
parties. For example, custody of children is thought to
be the right of paternal grandfathers, as well as parents,
and therefore, a wife cannot validly negotiate custody
(in the event of dissolution) through her marriage
contract. The standard marriage contract form
introduced in 1987 contains 11 conditions under which
the wife has access to talaq tafwid. These conditions are
all related to some failure of or defect in the husband
and include: his failure to pay maintenance; his failure
to perform sexual obligations, his failure to reproduce,
his failure to behave morally, his becoming insane, his
developing a life-threatening disease, his imprisonment,
his disappearance, and his failure to treat his wife justly.
Both spouses sign each clause of the contract, signifying
their acceptance of the agreed terms and conditions. The
contract also offers the option that wealth accumulated
during the marriage may be divided in half in the event
of divorce. The wife benefits from these conditions only
if she is not found to have failed in observing her
obligations, specifically her obligation to obey her
husband.
Malaysia: Although the Islamic Family Law Act does
not specifically recognise the possibility of negotiating
the terms and conditions of a marriage contract, it does
recognize taliq, a suspended talaq available to the wife
in the event that the husband fails certain obligations.
Each state has a standard taliq agreement (which varies
from state to state), and additional conditions may be
entered into this document, which is signed separately
from the marriage contract. Both the contract and the
taliq are recorded with the Marriage Registrar.
Morocco: Under Article 47 of the Moudawana, all
conditions are binding except those contrary to the
terms and objectives of marriage and to compulsory
legal rules; such conditions are void while the contract
remains valid. Case law recognizes stipulations that the
wife may work, provided her working serves the general
interest of the country. Under Article 48, the court may
waiver or modify a condition if facts or circumstances
make it difficult to meet that condition. However,
reference to Article 40 appears to state that an
agreement for the marriage to remain monogamous
cannot be altered. Under Article 49, the spouses may
draw up a separate document regarding management of
assets acquired during the marriage, and the parties are
to be officially informed of this possibility at the time of
marriage. Under Article 67(8), conditions agreed upon
by both parties are to be recorded in the marriage
contract.
Algeria: Under amended Article 19 of the Code de la
Famille (Family Code), the parties may specify in the
marriage contract or any subsequent witnessed
document, any conditions they choose, particularly
concerning polygyny and the wifes employment,
provided these do not conflict with the provisions of the
Code itself.
Sudan: Under Section 42 of the Muslim Personal Law
Act, women have the right to stipulate any condition
that neither prohibits a legitimate right nor legitimizes a
prohibited right. Conditions that are stipulated in the
contract are obligatory on the husband.
Tunisia: Under Article 11 of the Code du Statut
Personnel (Personal Status Code), conditions can be
stipulated in the notarized contract, and contravention of
or failure to meet these conditions allows both spouses
to apply for dissolution. Conditions can relate to persons
or property.


8-93-82417-01-9