Page |1

ABSTRACT
The term ‘Nikah’ has been used for marriage under Muslim law. The Arabic term ‘Nikah’ is used to
describe marriage is transliterated into “the Union of Sexes” and under this Arabic term, marriage
became a civil contract in Muslim Law. The Muslim Women (Protection of Rights on Divorce) Act,
1986{hereafter referred as ‘The Act’} provides for maintenance (Nafqa) to the Muslim women.
Maintenance refers to payment which a husband is under obligation to make to wife either during the
subsistence of the marriage or upon separation.

A Muslim Women can claim maintenance under the Sharait, Code of Criminal Procedure, 1973 and
from the Muslim Women (Protection of Rights on Divorce) Act, 1986. After the historic judgment of
the Mohd Ahmad Khan v. Shah Bano Begum1, what followed the judgment were the critics of the
outcome of the judgment of the impact of the judgment on the Muslim personal law. According to the
Muslim community if this judgment was accepted than in that case there personal law was
suppressed

The Indian government which was the congress party at that time was under pressure from the
Muslim community to bring a law which would overrule this judgment. So the government under the
pressure and in order to save its Muslim vote bank brought the law The Muslim Women (Protection
of Rights on Divorce) Act, 1986.
However, interpreting this Act in Daniel Latifi v. Union of India2, the Supreme Court, along with
declaring the Act to be constitutionally valid, interpreted the same, and clarified that the position as
settled in Shah Bano Case is the correct one, and that, if the true spirit of the Act is looked into, this
position shall emerge. Also, there is no conflict between CrPC and Muslim Personal Law.

KEYWORDS
Maintenance (Nafqa), Divorce (Talaq), Iddat period, Section 125-127 of CrPC

HISTORICAL PERSPECTIVE
A Muslim husband is bound to maintain his wife even if she is rich, i.e. has means of her own, and
notwithstanding that the husband is without any means.3 In the words of Schacht: “The maintenance of the
wife comprises food, clothing and lodging, i.e. a separate house or at least a separate room, she is not
obliged to bear any part of the expenses of the matrimonial establishment”.4 Under Muslim law wife’s right
of maintenance is a debt against the husband and has priority over the right of all other persons to receive
maintenance. In respect of priority of wife’s right of maintenance over the children, the Dull-ul-muhtar gives
the reason that the wife is asl (root) and the children are far (branch).

It is the duty of the husband to maintain his wife and children. In addition to this obligation the spouse can
enter into an agreement that the husband will pay special allowance to his wife. Such allowance is called
Kharcha-i-pandan or Guzara. According to Mulla, Kharcha-i-pandan means betel box expenses and is

1
AIR 1985 SC 945
2
(2001) 7 SCC 740
3
The Hedaya, 140.
4
Schacht, 167.
 Page |2

personal allowance to his wife customary among Muslim families of rank5. In Khawaja Mohammad Khan v
Nawab Hussain Begum6 the marriage was held during the infancy of children. It was agreed by the parents
that the father of the son will pay Rs. 500/- per month in perpetuity to his sons’s wife. This payment was
known as Kharcha-i-pandan and no condition was laid down for its payment.

The husband’s obligation to maintain his wife is a personal liability, thus after his death, the wife is
not entitled to be maintained by his relatives nor out of his property. 7 We have established that
maintenance is the right of the wife.
The following circumstance gives rise to such a right. These are:-

1. Marriage.
2. Divorce.
3. Pre Nuptial Agreement.

LEGISLATIVE PROVISION
Muslim Women is the Muslim Women (Protection of Rights on Divorce) Act, 1986 (here-in- after referred
as the Act of 1986). It is a declaratory law and codifies some pre existing rules of Muslim Law. The only
special thing about the Act is that while under Muslim Personal Law the same relief can be granted by Civil
Court, the jurisdiction under the Act rests with the Criminal Courts and this indeed ensures speedy decision
of cases. Under the Act, a woman who is unable to maintain herself is required to be maintained by those
persons who could be her heirs on her death, namely her children, parents and other relatives and failing
them, the State Wakf Boards. The Act consists of Seven Sections. The Preamble promised "to protect the
rights of Muslim women who have been divorced by, or have obtained divorce from their husbands".

A "Divorced woman" has been defined as a Muslim woman who was married according to Muslim law, and
has been divorced by, or has obtained divorce from her husband in accordance with Muslim law.8 Section 2
(b) of the Act defines Iddat'. It means in the case of a divorced woman:
 Three menstrual courses after the date of divorce, if she is subject to menstruation; and
 Three lunar months after her divorce, if she is not subject to menstruation; and
 If she is enceinte at the time of her divorce, the period between the divorce and the delivery of her
child or the termination of her pregnancy whichever is earlier

Section 39 begins with a non obstante clause which provides that a woman shall be entitled to a reasonable
and fair provision and maintenance to be made and paid to her within the period of iddat by her former
husband. Sub sections (2) and (3) of section 3 lays down the procedure. An application can be made to
Magistrate for an order of payment of dues under sub section (1) of section 3. Sub section (4) deals with the
subject of execution of order of payment.

Section 4(1)10 deals with the order for payment of maintenance to a divorced woman who has not remarried
and who is not able to maintain herself after the iddat period, against the relatives who would be entitled to

5
Mulla: Mahomedan Law, p. 292
6
(1910) 37 IA 152
7
G. Chakraborty, “ Law Of Maintenance” Sodhi Publications , 2003.
8
Section 2(a) of The Muslim Women (Protection of Rights on Divorce) Act, 1986.
9
Mahr or other properties of Muslim woman to be given to her t the time of divorce
10
Order for the payment of maintenance
 Page |3

inherit her property on her death according to Muslim Law. Similar provisions are made also for
maintenance allowance for the children of such divorced woman. Sub- Section (2)
of Section 4 provides that if a divorced woman has no relatives as mentioned in sub-section (1) or such
relatives do not have sufficient means to pay the maintenance, the Magistrate may by order, direct the State
Wakf Board established under section 9 of the Wakf Act, 1954 to pay such maintenance as determined by
him or to pay the shares of such of the relatives who are unable to pay.

Section 511 of the Act provides for option to be governed by the provisions of Section 125 to 128 of the code
of Criminal Procedure. It lays down that if, on the date of the first hearing of the application under
subsection (2) of Section 3, a divorced woman and her former husband declares, by affidavit or any other
declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer
to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of
1974); and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose
of such application accordingly.

Section 612 of the Act of 1986 deals with the rule making power of the Government.

Section 713 which contains transitional provisions provides-that application by a divorced woman under
Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974), pending before a
Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and
subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the
provisions of this Act.

JUDICAL DESCISION

Mohd Ahmad Khan v. Shah Bano Begum14

Facts of the Case briefly stated:

In the present case, a 62 year old woman was divorced and subsequently denied maintenance. She had not
remarried. On moving the court of the Judicial Magistrate at Indore under section 125 of the CrPC, and
claiming maintenance of Rs 500 per month, she was awarded maintenance of Rs 25 per month from the
husband. Aggrieved by the low amount, she filed a revision petition before the Madhya Pradesh High Court,
which entitled her to maintenance of Rs 179.20 per month. The husband appealed against this order before
the Supreme Court, his main contention being that since the dissolution had taken place, she ceased to be his
wife and under Muslim law, he was not obliged to pay her maintenance. Also, since he had paid the dower
amount during the Iddat period, the wife was not entitled to any maintenance. Muslim bodies like All India
Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as interveners. The case was decided
by a five judge bench composed of chief justice Chandrachud, Jangnath Misra, D A Desai, O. Chinnappa
Reddy, and E S Venkataramiah.

Judgment of the Court:- The Supreme Court dismissed the appeal and upheld the decision of the High Court.
The Supreme Court held that if the wife is equipped to maintain herself then the spouse's commitments
11
Option to be governed by the provisions of section 125 to 128 of CrPC
12
Power of central government to make rules
13
Transitional Provision
14
AIR 1985 SC 945
 Page |4

would stop post iddat. However in the event that she can't do so, recourse under section 125 is available and,
hence, the appellant had to pay.
The Supreme Court stated that if the Holy Quran is correctly interpreted, then it can be inferred that there is
not conflict between section 125 of the CrPC and Muslim Personal Law at all, since even under Islamic
Law, the husband is obliged to pay maintenance to the divorced wife. The Supreme Court explained this
judgment by saying that, even if there is a conflict, section 125 of CrPC is a secular law, and hence, applies
to all women, irrespective of their religion. It further stated that CrPC shall prevail over Muslim Personal
Law in case of a conflict. The court held:-
“It would be incorrect & unjust to extend the rule of maintenance under Muslim Law to the cases in
which the divorced wife is unable to maintain herself, so if the divorced wife is able to maintain
herself, the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to
maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of Cr.
P.C.”15
Hence, the Supreme Court settled the position of law that in case a Muslim woman is divorced, incapable of
maintaining herself and has not remarried, then she shall be entitled to maintenance under section 125 of the
CrPC.

RETROSPECTIVE EFFECT OF THE ACT

A Muslim wife who has been divorced even prior to the coming to the act is entitled to seek relief under the
provision of the Act. Thus, In Hyder Khan V Mehar Unnisa16 the objection by the husband that his wife,
who was divorced before the Act came, could not claim maintenance under section of 3 of the Act was
overruled. The court conceded that the cardinal principle is that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have retrospective operation but at the same time
observed17
It is not possible to hold as an invariable rule that a statute could not be retrospective unless so
expressed in the very terms of the section which had to be construed. Mere non mention in the
statute that it is retrospective is not sufficient to hold that that the statute has only prospective
operation.

In this case the court held that the Act is declaratory and the presumption against etropective operation
will not apply to declaratory statutes. Moreover the wording in the preamble it is clear that the
legislature intended to apply the Act even to women who were already divorced18.

Pre Shah Bano Approach

The Muslim Women's right to maintenance arises upon marriage and ends with the expiration of Iddat.
It was also the position under the code of Criminal Procedure 1898. Section 488 of the said code which
was analogous to present section 125, provided for the wife's right to claim maintenance during
continuance of her marital status. The adverse impact of this provision was that the husband could easily
defeat wife's claim for maintenance by pronouncing triple talaq. In such circumstances wife could claim
maintenance until the expiry of Iddat and not beyond it. In order to remove the anomalous situation,

15
Shah Bano Judgment main text
16
(1993) Cr LJ 236 (Ker) 731
17
Main text of the Judgment
18
The preamble to the Act : An Act to protect the rights of Muslim women who have been divorced by, or have
obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto.
 Page |5

Parliament introduced a new criminal procedure code 1973, which entitled a divorced woman to claim
maintenance so longs as she remains unmarried and is unable to maintain herself. At the time when the
Bill was at the anvil of the Parliament, a hue and cry was raised by the Muslim members of Parliament
against this provision. In order to give a sob to the orthodox and conservative opinion a provision under
section 127 was included which provided for the cancellation of the order of maintenance on the
payment of the sum which under any customary or personal law applicable to the parties was payable on
such divorce. This provision, namely, section 127 (3) (b), was the subject of interpretation in two earlier
decisions of the Supreme Court before the Shah Bano's easels was decided. Before section 127 (3) (b),
section 125 was challenged that the former husband is liable to provide maintenance up to Iddat period
and not beyond it.

In Khurshid Khan v. Husnabanu19 the learned counsel for the husband argued that, a divorced wife
under the Muslim law was entitled to maintenance only during the period of Iddat. Bombay High Court
rejected the argument and held that section 125 of the Code of Criminal Procedure was applicable to all
divorced wives irrespective of their religion or cast.
Later in the same year, M.S. Nesargi, J. asserted in U.H. Khan v. Mahboobunisa20, that the Criminal
Procedure Code was a law of land and not of any community. In case of conflict between the law made
by legislature and the personal law, the former was to prevail.
Through the Kerala High Court Mr. Justice Khalid in Kunhi Moyin v. Pathummai21 held that the
payment of maintenance during Iddat or the pa3anent of due Mahr Section 127 (3) (b) would not
'exonerate' the Muslim husband from the liability towards wife under section 125 of Cr.P.C. Speaking
on behalf of the Divison Bench, Mr. Justice Khalid highlighted the
'Social purpose of the legislation' as under: "In considering the social welfare legislation, the court will
be justified in straining the language a little to achieve the object of enactment. If the object of
enactment can be achieved only by the martyrdom of few husbands, we will boldly do so and would not
shirk our duty in effectuating the object of the enactment."22

EXTENT OF LIABILTY OF WAKF BOARD

Section 4 of the Muslim Women’s Act provides that the magistrate can order the State Wakf Board to
pay maintenance to a divorced woman if she is unable to maintain herself and she has no relative as
mentioned in sub section (1) of section 4 or such relatives or any one of them have not enough means to
pay the maintenance ordered by the magistrate or the other relatives have not the means to pay the
shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other
relatives under the proviso to the said sub section.23

19
1976 Cr.L.J. 1584 (Bom). Bench consisted of Vaidya and Rege. JJ. and the judgment was delivered by Vaidya J
20
1976 Cr.L.J. 395 ( Ker)
21
1976 KLT 87.
22
Ibid
23
Sub section (2) of section 4 reads: Where a divorced woman is unable to maintain herself and she has no relatives as
mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance
ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares
have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the
Magistrate may, by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of 1954),
or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay
such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he may specify in his order
 Page |6

In Tripura Board of Wakf v. Smti Tahera Khantoon24 the magistrate had come to the conclusion that the
claimant was unable to maintain herself and she had a poor mother who also could not maintain her and
therefore, ordered maintenance in her favour from the Wakf Board. The Magistrate had, however, not
considered as to whether there were other relatives referred to in section 4(2) of the Act who had means
to pay the maintenance to the respondent. On appeal, the Gauhati High Court held that there should have
been a finding recorded by the magistrate about the relatives of the claimant who were bound to pay her
maintenance under sub section 4 (2) of the Act. In absence of such a finding, the Wakf Board would not
be liable under section 4. The court further clarified that even where no such plea is taken by a Wakf
Board before the magistrate, a Suo Motu finding should be recorded by the magistrate about the
relatives of the divorced woman as mentioned. Further the order passed by the magistrate must also
indicate the amount of maintenance determined by him, which is to be paid by the concerned State Wakf
Board.
The question regarding liability of Wakf Boards to maintain divorced Muslim Women was again
considered by the Gauhati High Court in Hasenara v. Fazar Ali25 The court held that section 3 of the
Muslim Women’s Act stipulates that the former husband of a divorced Muslim Woman has to "make
provision" and "pay maintenance" to her within the Iddat period and after the expiry of the Iddat period
the liability "to pay the maintenance" is shifted upon the relatives classified and referred to under section
4(1) and in case of non-availability of relatives as stipulated there under the responsibility is shifted
further to the State Wakf Board under section 4(2) of the Act. Here, the court has marked a distinction
between "making provision" and "payment of maintenance", and observed that after Iddat the liability to
"make provision" for divorced woman is exclusively that of the former husband and not of the relatives
or the Wakf Board. The liability of the Wakf board is confined only to maintenance. Taking a literal
view of the provisions of section 4, the court has observed that the Parliament deliberately omitted the
use of the term 'provision' in both sub sections of section 4 which would lead any prudent man to form
an opinion that so far as "making provisions" for divorcees is concerned, the liability remains with the
former husband by the implicit significance of deliberate mentioning of a term in section 3 while
consciously omitting it in section 4.

MAINTENANCE UNDER SECTION 125 CrPC AND SECTION 3 OF THE ACT

The Muslim Women (Protection of Rights on Divorce) Act, 1986 came to annule the historic judgment
of Shah Bano case in which it was held that a Muslim wife is entitled to get maintenance even after
expiry of iddat period. The Shah Bano case was a milestone in the Muslim women's search for justice
and the beginning of the political battle over personal law. The Congress Government, panicky in an
election year, caved in under the pressure of the orthodoxy. It enacted the Muslim Women (Protection of
Rights on Divorce) Act, 1986. The most controversial provision of the Act was that it gave a Muslim
woman the right to maintenance for the period of iddat (about three months) after the divorce, and
shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was seen as
discriminatory as it denied divorced Muslim women the right to basic maintenance which women of
other faiths had recourse to under secular law.

24
AIR 2001 Gau 103.
25
(2001)2 G1T 287
 Page |7

The Bharatiya Janata Party saw it as `appeasement' of the minority community and discriminatory to
non-Muslim men, because they were still bound to pay maintenance under Section 125, Cr. PC.
However, lawyers who have seen the Act in operation say that there is good reason to take another look
at the Act. It contains provisions which have left it open to liberal interpretation. Flavia Agnes, a
Mumbai-based lawyer, says that liberal interpretation has not been wanting. Clause A in Section 3 (1) of
the Act says that a 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.'' The injunction that `a
reasonable and fair provision is made' and `maintenance paid' leaves enough scope for gender-sensitive
judgments.

Under section 125 of CrPC, 1973, a wife, whether Muslim or non-Muslim is entitled to claim maintenance
against the husband on the ground of the husband’s neglect or refusal to maintain her. S. 125 of the new
code includes every divorcee-wife, Muslim or non-Muslim.
Second proviso to s. 125(3) lays down that if the husband makes an offer to the wife to maintain her
provided that she should live with him and if the wife refuses to live with the husband, then the Magistrate
may consider any ground on which the refusal has been made and may make an order for maintenance
notwithstanding the offer made by the husband.

The section also lays down that if the husband has contracted marriage with another woman, then it is a just
ground for wife’s refusal to live with the husband. Similarly, where a husband is impotent and is unable to
discharge the marital obligations, this would also amount to a just cause.
Sub-section 4 of section 125 contemplates that if a wife is living in adultery or without any reason refuses to
live with her husband; the wife would not be entitled to maintenance.

The question as to whether Section 125 of the code of Criminal Procedure applies to Muslims also was
concluded by two decisions of this court in Bai Tahira v. Ali Hussein Fidaalli Chothia26.The Criminal
Procedure Code provides maintenance under Section 125 for wife, sons, and daughter up to age of majority
only permitted. Section 125 of Criminal Procedure Code is common to all people to move to the court for
getting maintenance.
Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act provides statutory liability of
providing maintenance extends beyond attainment of a dependent girl till marriage. In this circumstance she
has to move to the Civil Court under the personal law to obtain maintenance. This process leads to delay and
multiplicity of proceedings.
In Bai Tahira’s case Justice Krishna Iyyer held that:

“Welfare laws must be so read as to be effectively delivery system of salutary objects sought to be served by
the legislature and when the beneficiaries are weaker section like the destitute women. The spirit of Article
15(3) has compelling compassionate relevance in the contest of Section 125 Cr.P.C. and the benefit if any in
the statutory interpretation goes in favour of ill used wife and the derelict divorcee. So the Section 125 and
the sister clauses must receive a compassionate expansion of sense that the words used permit.”

In Mst. Zohara Khatoon v. Mohd. Ibrahim27 the question before the court was that whether a Muslim wife
who has obtained divorce from her husband under Dissolution of Muslim Marriage Act, 1939 entitled to

26
1979 AIR 362
27
1981 AIR 1243
 Page |8

claim maintenance under Section 125 of CrPC. Answering to this question the Allahabad High Court was of
the view that clause(b) of the explanation to Section 125 would apply only if divorce proceeds from the
husband that is to say that the said clause would not apply unless the divorce was given unilaterally by the
husband or was obtained by the wife from the husband. But on appeal the Supreme Court held that the view
taken by the Allahabad High Court was erroneous and is based on wrong interpretation of clause (b) of the
explanation to Section 125. Therefore it suggests that a Muslim wife whose divorce has been done under the
Dissolution of Muslim Marriage Act, 1939 may also claim maintenance from the husband.

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others28 has held that if the divorced
woman is able to maintain herself, the husband's liability ceases with the period of iddat, but if she is unable
to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of
Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance
to the divorced wife

CONSTITUIONAL VALIDITY OF THE ACT

The Constitutionality of the Act has been examined by the Supreme Court in Maharishi Avadesh v. Union of
India29 and Danial Latifl V. Union of India.30

Firstly, constitutional issues pertaining to the Act of 1986 were looked into by the Orissa and Kerala High
Courts. The constitutionality of section 5 was first tested before the Orissa High court in Bishnu Charan
Mohanty V. Union of India31. it was argued that section 5 providing option to a Muslim to be governed either
by section 125 of the code of criminal procedure or by the Act of 1986 in respect of maintenance to divorced
wife was violative of Articles 15(1)32 of the constitution as the discrimination was practiced solely on the
grounds of religion. On the other hand, a Hindu had no choice so far as application of section 125, Cr.P.C.
was concerned. The Court emphasized the significance of the word 'only' used in Articles 15(1) and held that
the classification based on religion would not ipso-facto make the legislation violative of Articles 15(1). The
same would be discriminatory if it involved an element of unfavourable bias. The classification based on
religion would not be so if there existed historical personal or other persons supporting the classification.
Upholding the constitutionality of section 5 of the Act, the court did not read unfavourable bias nor could it
be said that the classification was based on religion without any justification. The court did not miss the
opportunity to press for enacting Uniform Civil Code.

The constitutional validity of section 4(2) of the Act was challenged before Kerala High Court in Syed Fazal
Pookaya Thangal v. Union of India33. It was argued by the petitioner that section 4(2) of the Act directing
Wakf Board to pay maintenance to divorced Muslim women violated Articles 25 and 2634of the constitution
as Wakf being a 'pious religious activity' intended to please God, and beneficial to the spiritual well being of

28
AIR 1985 SC 945
29
1994 Supp (1); SCC 713
30
(2001) 7 SCC 740
31
AIR 1993 Ori 176
32
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them
33
AIR 1993 Ker 308
34
Article 25, Freedom of conscience and free profession, practice and propagation of religion
Article 26, Freedom to manage religious affairs Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right
 Page |9

the Muslim faithful. It was held that section 4(2) was not violative of Articles 26 of the constitution because
the rights guaranteed by Articles 26 were available only to religious denomination and Wakf was not a
denomination. It was a creative of Wakf Act and not a representative body of the Muslim community.

Maharshi Avadesh v. Union of India35a writ petition was filed under Article 32 of the constitution for
declaring he Act of 1986, violative of Articles 14,15,44,38,39 and 39-A of the constitution. The court was
requested to issue the writ to union of India for the enactment of Uniform civil code. Holding that the writ
was not maintainable, the Supreme Court observed that it may not interfere with the policy of legislature.

The major judgment where the constitution validity of the act was Danial Latifl v. Union of India36. In this
case constitutionality was challenged on the following grounds:

i) The Act was un-islamic, unconstitutional having potential of suffocating the Muslim women;
ii) Excluding the application of section 125, Cr.P.C. was violative of Article 14 and 21 of the
constitution;
iii) The conferment of power on the Magistrate under subsection (2) of sections 3 and 4 of the Act
was different from the right of a Muslim woman like any other womanin the country to avail of
the remedies provided under section 125 Cr.P.C. And hence the Act of 1986 was
unconstitutional.
iv) The remedy provided under the Act was illusory as, she could not get sustenance from the parties
who were not only strangers to the marital relationship. Secondly, Wakf Boards would usually
not have means to support such destitute women. Thirdly, the potential legatees of a destitute
woman would either be too young or too old so as to be able to extend requisite support.
Thus, the provision violated right to life and liberty and was unreasonable and unconstitutional. While
holding that the impugned legislation did not violate Article 14, 15 and 21 of the constitution, the court
concluded.

i) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife
which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond
the iddat period must be made by the husband, within the iddat period in terms of section 3(1) (a)of the Act.

ii) Liability of Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay
maintenance is not confined to iddat period.

The Apex court while upholding the validity of the Act held that a Muslim husband is liable to make
reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance
as well. Such a reasonable and fair provision extending, beyond the iddat period must be made by the
husband within the iddat period in terms of section 3(1) (a) of the Act. Liability of Muslim husband to his
divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to iddat period. A
divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period

35
1994 Supp (1); SCC 713
36
(2001) 7 SCC 740
 P a g e | 10

can proceed as provided under section 4 of the Act against her relatives who are liable to maintain her in
proportion to properties which they inherited on her death according to Muslim law from such divorced
woman including her children and parents. If any of the relatives being unable to pay maintenance, the
magistrate may direct the State Wakf Board established under the Act to pay such maintenance. It was also
held that decisions of the High Courts which are contrary to the present judgment stands overruled.

CONCLUSION
We see that under Muslim law, maintenance post divorce has been a controversial subject matter. Initially,
there were two sources from which the right to maintenance of a divorced Muslim woman emanate- these
were section 125 of CrPC and the Muslim Personal Law. There was a conflict between the two since, under
CrPC, the right of a woman to claim maintenance was beyond the iddat period and under Muslim Personal
Law, the husband was obliged to pay maintenance only during iddat period. To resolve this, section 127 was
inserted in CrPC, but this was unsuccessful in resolving the conflict and being a substitute for maintenance.
In this context, the famous Shah Bano Case was decided, which settled the position of law. The case gave
precedence to CrPC over Muslim Personal Law, and stated that if the divorced woman does not have the
means to maintain herself, the it is the obligation of the husband to maintain her for her entire lifetime, and
hence, well beyond the iddat period. The judgment caused a lot of unrest among traditional Islamic groups,
which saw this as an attack on their personal law.
Coming under pressure, the Rajeev Gandhi led government enacted the Muslim Women (Protection Of
Rights On Divorce) Act, 1986. This act stated that the husband is obliged to provide fair and reasonable
maintenance within the iddat period. This led to a lot of ambiguity and a sense of confusion prevailed over
the interpretation of the terms.
This confusion was finally resolved by another landmark judgment, Daniel Latifi v. Union of India. In this
case, the Supreme Court upheld the constitutional validity of the Act and stated that the same does not
contravene Article 15,14 and 21 of the Indian Constitution. Interpreting the terms, the Court said that the
husband is obliged to provide for maintenance of the divorced woman even beyond iddat period, since the
term fair and reasonable provision implied this. The term within was construed to mean that such a
maintenance should be made within the iddat period. However, the obligation does not end with the Iddat
period.
Therefore, the case is credited for serving dual purpose of maintaining the constitutional validity of the Act
and reiterating the position which was settled in the Shah Bano Case. The position has been seconded by
Court in various instances and stands unchanged.
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BIBLIOGRAPHY
1. Books Referred
 Flavia Agnes, Family Law: Volume II-Marriage, Divorce, And Matrimonial Litigation,
(Oxford University Press, 2011)
 G. Chakraborty, Law Of Maintenance (Sodhi Publications, 2003).
 Khan Ephroz , Women and Law : Muslim Personal Law Perspective (Rawat Publications ,
2003)
 Paras Diwan and SN Jain , Law of Marriage and Divorce ,(Universal Law Publishing Co , 6th
Edition , 2011)
 Flavia Agnes, Family Law and Constitutional Claims Family Law Vol. I, (Oxford University
Press, Ed. 1st 2011.)
 Durga Das Basu: Constitutional Law of India. Butterworth LexisNexis 2009.
 Kusum: Family Law Lectures Family Law I, (Lexis Nexis Ed. 2016)

2. Articles Referred:-
 Narain Vrinda, “Reclaiming the Nation: Muslim Women and the Law in India. India”
University of Toronto Press. .
 "The Shah Bano legacy". The Hindu. 2003-08-10
 Maintenance of Women and Children under Muslim Law: Legislative Trends In Muslim
Countries M. Afzal Wani, Indian Law Institute, Delhi
 Maintenance Rights in Muslim Personal Law Tarannum Siddiqui Sarojini Naidu Centre for
Women’s Studies, Jamia Millia Islamia, New Delhi, India

3. Cases Referred:-
 Bai Tahira vs Ali Hussain Fissalli Chothia , (1979 AIR SC 362)
 Daniel Latifi v. Union of India, (AIR 2001 SC 3958).
 Fuzlunbi v. K Khader Vali, (AIR 1980 SC 1730)
 Iqbal Bano V/s. State of U.P,( AIR 2007 SC 2215)
 Mohammed Haneefa v. Mariam Bi , (AIR 1969 Mad 414)
 Mohd Ahmad Khan v. Shah Bano Begum, (AIR 1985 SC 945)
 Saira Bano v A.M Abdul Gafoor., (AIR 1987 SC 1103)
 Zohara Khatoon vs Mohd. Ibrahim, (1981 AIR SC 1243)
 Khawaja Mohammad Khan v Nawab Hussain Begum, (1910 37 IA 152)
 Hyder Khan V Mehar Unnisa, (1993 Cr LJ 236 (Ker) 731)
 Khurshid Khan v. Husnabanu, (1976 Cr.L.J. 1584 (Bom)
 U.H. Khan v. Mahboobunisa,[1976 Cr.L.J. 395 ( Ker)]
 Kunhi Moyin v. Pathummai, (1976 KLT 87)

 Tripura Board of Wakf v. Smti Tahera Khantoon, (AIR 2001 Gau 103).
 Hasenara v. Fazar Ali, (2001 2 G1T 287)
 Bai Tahira v. Ali Hussein Fidaalli Chothia, (1979 AIR 362)
 Zohara Khatoon v. Mohd. Ibrahim,( 1981 AIR 1243)
 P a g e | 12

 Avadesh v. Union of India, (1994 Supp (1); SCC 713)

 Bishnu Charan Mohanty V. Union of India, ((2001) 7 SCC 740)
 Syed Fazal Pookaya Thangal v. Union of India, (AIR 1993 Ori 176)

4. Statutes Referred:-
 Code of Criminal Procedure, 1973
 Muslim Personal Law (Shariat Application) Act, 1937
 The Muslim Women (Protection of Rights On Divorce) Act, 1986
 Constitution of India, 1950