Muslim Marriages are regarded as a contract between the husband and wife, who accepts it by uttering “Qubool hai” thrice and signing the required documents in the presence of witnesses. In Muslim law, maintenance is called Nafaqah. The provision of giving maintenance to a wife is to provide support to women. In Islam, the rights and obligations in a marriage are equal in nature for both husband and wife. If the husband fails to provide maintenance to the wife, she can legally refuse to cohabit with the husband. Likewise, if the wife fails to live with the husband, he is then not bound to support her. Nafaqah or maintenance includes “all those things which are necessary to the support of life, such as food, clothes and lodging.”
Maintenance to Wife
Under Muslim law, the right of the wife to receive maintenance is an absolute right. In a valid marriage, a husband is bound to maintain his wife, i.e., to provide food, shelter, and clothing. However, such is not the case in the case of void or irregular marriage. As mentioned earlier, the rights and obligations in a Muslim marriage are bilateral in nature. If a wife is unfaithful or refuses to obey her husband, then the husband is free from the obligation to maintain his wife.
A wife is entitled to maintenance even in the following cases:
- If she is rich or capable of earning or earning.
- If the husband is impotent or too ill.
- If the husband has more than one wife.
In case a husband is a minor, then he will maintain his wife by the realization of his property. Maintenance is an independent right of the wife, which she loses if she is unchaste or apostasies.
Maintenance in case of Divorce
Divorce is a situation of dissolution of marriage, wherein, husband and wife are no longer under the contractual obligation to perform their duties towards each other. However, even after the dissolution of marriage, a wife is entitled to maintenance. Under Muslim law, maintenance to wife after divorce can be categorized into three categories:
- Muslim Personal Laws
- Section 125, Criminal Procedure Code, 1973
- The Muslim Women (Protection of Rights on Divorce) Act, 1986
Muslim Personal Law
After the dissolution of marriage, Muslim personal laws suggest that a wife is entitled to maintenance from her husband only for the period of Iddat. Iddat is the period, a Muslim woman observes after Talaq (Divorce). The duration of Iddat is three mensuration cycle or if pregnant, then it extends to the whole of pregnancy. A husband is bound to provide maintenance only for the period of Iddat, and not beyond that. Once the Iddat period is over, then a Muslim woman is entitled to receive maintenance from her those relatives who can inherit her property.
In Muslim law, there are substances when a wife is not entitled to maintenance after the dissolution of marriage. It includes:
- If the marriage is dissolved because of the wife’s defects.
- An apostate wife.
- When the right to maintenance got suspended during marriage for some reasons.
There are certain circumstances wherein a wife can enter into a valid agreement to obtain separate maintenance. These circumstances could be ill-treatment, dis-agreement the wife not being able to adjust to another wife or any agreement which is opposed to public policy. For example, an agreement to that wife would not be entitled to maintenance after divorce is void.
Section 125, Criminal Procedure Code, 1973
Section 125 of the Criminal Procedure Code, 1973 provides for the right to maintenance of wife, children, and parents. The act applies to the whole of India, irrespective of religion. According to this section, a wife is entitled to maintenance by her husband in the following conditions:
- If the wife is unable to maintain herself.
- The husband must have sufficient means to pay for the maintenance.
- If the husband has refused to maintain her.
- The wife has not refused to live with her husband except for a reasonable cause.
- The wife not living in adultery.
- The husband and wife not living separately by mutual consent.
- The wife has not remarried after the divorce.
Under this section, only a woman who is not able to maintain herself after divorce is entitled to maintenance. However, Muslim personal law suggests that no matter how much wealth the wife possess, she is entitled to maintenance. This section seems to be in contradiction to the Shariat Act,1937. In Ishak Chandra V. Myamatbi & Ors. (1980), the issue of whether section 125 is inconsistent with the provisions of the Shariat Act and whether the Shariat Act should prevail over the general provisions of the new code. It was held that the provisions granted under Section 125 of CrPC are additional rights to divorced Muslim women. These rights do not conflict with rights that are conferred by the Muslim Personal Laws.
Further, in the leading case of Mohd. Ahmad Khan V. Shah Bano Begum(1985), Justice Y.Y Chandrachud explained the scope of section 125 CrPC. He reiterated the fact that a Muslim woman after divorce falls under the category of “wife” as per the section, and therefore, entitled to maintenance. He added that it would be unjust to hold that a Muslim husband is not under obligation to maintain his former wife, beyond the iddat period. As a result, the application of section 125 was extended to Muslim wives as well.
The Muslim Women (Protection of Rights on Divorce) Act, 1986
As soon as the significant judgement of the Shah Bano case came out, there was a hassle in the Muslim community to undo the effect of section 125 CrPC amongst the Muslim as a Muslim husband is obligated to maintain his former wife for the period of iddat. As a result, a bill was introduced in the Parliament to make separate provisions for the protection of Sharia as well as Muslim women. It led to the enforcement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 on 19 May 1986.
The given act only applies to women married according to Muslim law. It does not extend to provide provisions to Muslim women who are married under the Special Marriage Act, 1954. In the famous case of Daniel Latifi V. Union of India (2001), a writ petition was filed under Article 32 challenging the constitutional validity of the Act as it provides special provisions to women and is violative of Article 14 of the Constitution of India. The petition was dismissed by the Supreme Court of India. Thereby, upholding the validity of the act.