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MAINTENANCE OF A MUSLIM WIFE UNDER SECTION 125

CrPC: AN OVERVIEW OF SUPREME COURT CASES

Written by Meher Tatineni

2nd Year BBA LLB Student, Christ University, Bangalore

ABSTRACT

Muslim law in its pristine purity was an admirable system of jurisprudence providing, as it did,
many rational and revolutionary concepts which could not be conceived by the other systems
of law then in force at that distant date. It provided, for example, for the right of inheritance to
the females even when there were male heirs and also the modern concept of divorce by mutual
consent, while the other systems of law took so many centuries to do so. Although it evolved
over years it still has some lacunae, especially regarding the maintenance of wife after divorce
and which law should guide the issues concerning this concept. Muslim law provides for the
maintenance of wife and her rights over the claim of maintenance during marriage as well as
after the dissolution of the marriage. There are many progressive legislations which came up
for protection of Muslim women rights after divorce. One such important legislation which will
be discussed in this paper is Muslim women protection of rights on divorce, 1986. This paper
tries to throw light on the circumstances which are essential to provide for maintenance after
divorce. Also discusses those situations where husband is not liable to maintain his wife, what
is the time period for providing maintenance and the conflict between personal law and
criminal procedure code. This paper also gives an insight into the cases dealt by the Supreme
Court of India over decades which tried to resolve the conflict and emergence of uniform civil
code regarding applicability of Sec. 125 of CrPC. Some of the case laws like Shah Bano, Danial
Latifi which are a breakthrough in the concerned law are discussed briefly.

Keywords: Danial Latifi casei, Divorce, Iddat Period, Maintenance, Muslim Women
Protection Act, Sec 125 Crpc, Shah Bano Caseii.

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INTRODUCTION

Under Muslim law women are considered weak to men and men have the obligation to maintain
their wife at all situations. This was a source to the concept of maintenance after divorce. The
concept of Maintenance was introduced to provide support to those people who are not capable
to maintain themselves. It is basically provided to the spouse who is not independent and is
dependent on the other spouse. The principle of maintenance includes financial support, means
of livelihood and educational facilities. The whole concept of maintenance is to protect the
rights of the wife and to provide her a dignified life and even after the dissolution of marriage,
the husband is in the liability to provide maintenance to his wife if she is not able to maintain
herself. Various laws and rules have been made on the principle of maintenance. The concept
of maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. The whole law with regard to maintenance of Muslim divorced woman finds its
source in some Quranic verses, which give a clear-cut picture that a divorced woman is entitled
to maintenance till the expiry of iddat period or in case she is pregnant this period extends up
to the delivery. It is believed that women are not able to maintain themselves on their own so
it is the liability of the husband to provide maintenance to her wife in all conditions even if she
is capable of maintaining herself. Maintenance is known as “Nafqah” which literally translates
to “what a man spends on his family”. Nafqah basically includes food, clothing, and lodging.
Under Muslim Law, maintenance is provided to wife even if she is capable of maintaining
herself which differs it from other laws and gives her more rights than her counterparts in other
religions.iii It is the liability of husband under Muslim law to maintain his wife even after
divorce irrespective of his financial condition. A divorced wife is entitled to be maintained by
her former husband during the period of iddat which is a period of three menstrual courses or
three lunar months according to Muslim law. On the expiration of the period of iddat, the wife
is not entitled to maintenance as Muslim law does not recognize any obligation on part of the
husband to maintain his wife after this period. The quantum of maintenance is not prescribed
under any matrimonial statute. It is decided at the discretion of the court upon the existing
circumstances. Under the Shia Law, the quantum of maintenance is decided by taking into
consideration the requirements of the wife. Under Shafei Law, the quantum of maintenance is
determined by the post of the husband. Under Muslim Law the rights of the wife to get
maintenance during the marriage is absolute but after the dissolution of marriage, her rights are

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limited. Muslim wife does not have any proper means for herself in Muslim Law. If after the
expiry of iddat period, she has no means to maintain herself then in that case husband has no
liability for her and she is left with nothing. Which paves way to section 125 of CrPC, provides
for maintenance to divorced wife of all religion. It stated that after divorce if the wife is not
able to maintain herself, she is entitled to maintenance from her husband until she gets married.
The act applies this provision to Muslim women also who are not entitled to the maintenance
after the period of Iddat. This act creates liability over husband to provide maintenance to wife
even after the period of Iddat. But the provisions of this act are in conflict with the provisions
of Muslim Law and a debate was going on as which law should be applied. This matter was
seen by the Supreme Court in many notable cases. One such notable case is Shah Bano case,
in which the court propounded that a divorced Muslim woman was entitled to maintenance
under section 125 CrPC, if she was not able to support herself created stir among the
traditionalists. Consequently, the government had to pass the Muslim Women (Protection of
Rights on Divorce) Act, 1986 which resolved the conflict up to certain extent and diluted the
effect of the judgement.

LEGAL FRAMEWORK

There was no code as such for Muslim law due to many reasons. One of reasons was they were
inclined towards conservative thought process and never were acceptable towards change.
Muslim law as it stands today needs a lot of changes, but orthodox Islamic thinking and
different practices in among different sects make it difficult to bring about any change in the
law unlike Hindu law which was codified. However, two legislations are widely used whenever
there is an issue regarding maintenance of wife in Muslim law. They are:

1. Criminal Procedure Code:

Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim
woman, who was divorced by or from her husband, was granted a right to livelihood from her
husband in the shape of maintenance under the provisions of Chapter IX of the Code of
Criminal Procedure until she remarried. Section 125 to 128 of CrPC lay provisions for

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maintenance of wives, children and parents. Section l25 of the Code gives effect to the natural
and fundamental duty of a man to maintain his wife, children and parents so long as they are
unable to maintain themselves. This provision is a measure for social justice and specially
enacted to protect women. The applicability of this section to Muslim women was questioned
in the landmark case of Mohammad Ahmed Khan v. Shah Bano Begumiv. The court upheld
the applicability of criminal procedure code to every woman irrespective of their religion.

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

The deprivation of the Muslim divorced woman of her right to maintenance under the
beneficial provisions of Chapter IX of the Code of Criminal Procedure, which are otherwise
available to all other women in India, has been effected by a reasonable, right, just and a fair
piece of law was enacted in the Muslim Women (Protection of rights on divorce) act, 1986.
And if these provisions are much less beneficial than the provisions of Chapter IX of the Code
of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably
discriminated and driven out from the protection of the benign provisions of the general law as
enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu,
Buddhist, Jain, Parsi or Christian woman or a woman belonging to any other community. The
constitutional validity of this act was questioned in the case of Danial Latifi v. Union of Indiav.
As a result of this judgement a Muslim divorced wife has more rights than her counterparts at
present. The aim of this Act is to protect the rights of Muslim women who have been divorced
and to provide for matters connected therewith or incidental thereto.

MAINTENANCE
A great deal of public concern has been expressed in recent years about the consequences of
the passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This act made
divorced muslim women ineligible to file a suit for maintenance against their former husbands
under section 125 of the CrPC. One of the questions that remains unanswered is whether and
to what extent has the passage of MWA has created new hardships for divorced Muslim
women. Clearly, fewer destitute women resort to section 125 of the CrPC today than they did

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in the past. Those who would formerly have been eligible to do so must now seek support
elsewhere one option being to file suit under the MWA. In recent decades there has been a
good deal of controversy over this issue in Muslim Personal law that is whether and for how
long a Muslim man is responsible for the support of a wife whom he has divorced. Disputes
over this question go back to the 1898 Criminal Procedure code, which is applicable to all
citizens irrespective of their religion. This provision met strong opposition from the Muslim
clerical establishment which insisted that Muslim men should be exempted from its provisions
since it contravened Islamic law. Their contention was that under Islamic law a Muslim man’s
financial responsibility for a divorced wife ends once she has completed the religiously
prescribed post-divorce waiting period of approximately three months which is also known as
the iddat period. The Supreme Court judgement of Shah Bano was widely publicized and not
only because of its substance but also because of the way it was phrased created a furore within
the Muslim religion. Mass demonstrations were organized all over the country, petitions were
circulated and the issue was extensively publicized and debated in media. The outcome of this
prolonged agitation was the passage of the Muslim Women (Protection of Rights On Divorce)
Act, 1986 (MWA) by Parliament. It provided that once a divorced Muslim woman’s iddat
expenses have been paid and she has received her mehr and any money or other property that
at the time of their marriage had been gifted to her his financial responsibility ends there. She
can no longer turn to section 125 for a maintenance order against him as she could have in the
past. The trend has been followed after this act but on the ground is slightly different. This
paper tries to analyse the trends followed through case analysis of Supreme Court judgements
and one of the most important case of Shah Bano. The period of analysis is 2001 to 2009. The
graph below represents the number of cases that reached Supreme Court under section 125 of
CrPC over the years, as you can observe it has drastically fallen down after introduction of the
MWA, 1986. But showed a sudden rise after 2000 which signifies that there was some lacunae
in the law and difficulty in implementing it, which gives the reason for the time period this
paper analyses.

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YEAR NO. OF
CASES
1997- 1986 9
1987-1997 6
1998-2007 7
2008-2018 13

Research Period in Particular

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CASE ANALYSIS

1. Mohd. Ahmad Khan V. Shah Bano Begumvi - Triple Talaq and maintenance
Landmark Case.
Bench of Judges: Y.V Chandrachud, D.A Desai, O.Chinnappa Reddy, E.S
Venkataramiah, Rangnath Misra.
Facts: The facts of this case are in 1932, Shah Bano was married to Mohd. Ahmad
khan, who was a renowned lawyer in Indore. They were the parents of 3 sons and 2
daughters i.e. in total they have 5 children. After 14 yrs. Of their marriage Shah Bano's
husband married another woman who was younger than him. In 1975, when Shah Bano
age was of 62 yrs , she was disowned by her husband and was thrown out from her
matrimonial home along with her children. In April 1978, she brought an appeal under
Sec. 125 of code of criminal procedure, 1973 (CrPC) in the presence of judicial
magistrate of Indore after when she was thrown away from her matrimonial home by
her husband. Shah Bano filed this suit in 1978 because her husband has abandoned her
from the maintenance of Rs. 200 per month which he guaranteed to give. A wife who
is without any income and is neglected by her husband is entitled to maintenance, which
includes a divorced wife who is not remarried. In Nov. 1978, he gave divorce to his
wife Shah Bano by articulating or uttering "Triple Talaq” and it was irrevocable. The
argument or conflict between Shah Bano's children and her husband's other wife were
vital reason or grounds on which divorce was relinquished and furnished. After he
pronounce irrevocable Triple Talaq, he took a safeguard that since because of this
divorce she has been terminated to be her legal wife and due to which he was not
accountable to furnish her with maintenance or alimony. The local court (magistrate)
court directed Mohd. Ahmad to furnish her Rs. 25 per month to Shah Bano in a form
of maintenance. Shah Bano in July 1908, apart from this, made a plea to High Court of
M.P, to alter the amount of maintenance to Rs. 179 every month. Shah Bano's precedent
went to Supreme Court and filed a petition against the verdict of High Court of Madhya
Pradesh. Her husband essential argument after divorce he cannot keep any form of
alliance or connection with his divorce wife because it is not allowed by Islamic
laws/Islam and is "Haram" & hence he is not legally responsible to maintain her wife.

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Issues:
i. Whether Section 125 of the Code of Criminal Procedure is concerned with Muslims
or not?
ii. Whether the amount of Mehr given by the husband on divorce is adequate to get the
husband rid of maintaining his wife?
iii. Whether Uniform Civil Code applies to all religions or not?

Judgement:
The verdict of Shah Bano case was conveyed by C.J, CHANDRACHUD.
All India Muslim Personal Law Board and Jamiat ulema-e-Hind were the two Muslim
Bodies accompanied the lawsuit as an intervenor. On 3rdFeb. 1981, Supreme Court
gave a like-minded conclusion in this case and banished the plea of Mohd. Ahmad Khan
and validated the verdict of High Court. The court held that Section 125 of Code Of
Criminal Procedure solicited to Muslims too, without any sort of discrimination.
Supreme Court in this case duly held that, since responsibility of Muslim husband
towards her divorced wife is limited to the extent of " Iddat" period, even though this
situation does not contemplate the rule of law that is mentioned in Section 125 of
CrPc.,1973

According to Supreme Court this rule according to Muslim Law was against humanity
or was wrong because here a divorced wife was not in a condition to maintain herself.
Thus, at the end, after very long procedure court finally concluded that the husband’s
legal liability will come to an end if divorced wife is competent to maintain herself. But
this situation will be reversed in the case when wife is not able in a condition to finance
or maintain herself after the Iddat period, she will be entitling to receive maintenance
or alimony under Section 125 of CrPc.

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

The judgement given in Shah Bano Case was criticized among Muslims and according
to them this decision was in conflict with the rules of "Quran" and "Islamic Laws/
Islam". So, Parliament of India in 1986, (Congress govt.) decided to enact the Muslim
women (Protection of Rights Of Divorce) Act, 1986. The main objective of this act was

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to protect the right of the divorced Muslim women and or to those who have got divorce
from their husband's. According to this act, Muslim divorced women should be entitled
to adequate and reasonable amount of maintenance till the Iddat period. When a
divorced woman maintains a child born by her any time before or after the divorce, the
husband is under legal obligation to provide a certain amount of maintenance for the
child to a period of 2 yrs. From the birth date of a child. The women are also authorized
to obtain "Mahr" or "dower" and receive back all the properties or estate which is
provided to her by her parents, friends, relatives, husband or husband's friends. If such
advantages are not received by the divorced Muslim women from her former husband,
she can apply to magistrate for ordering him to provide her with maintenance/alimony
or amount of "Mahr" or dower or her estate or properties.

Critical Analysis: In this case the Supreme Court specifically underlined the that Triple
Talaq cannot take away the maintenance right of a divorced Muslim women who is not
in a condition to maintain herself or her children when she is disowned or divorced by
her husband. The period when the verdict of Shah Bano Case was delivered by the
Supreme Court it faced a lot of criticism. At that point of time Muslim women weather
married or unmarried were not given freedom even they were debarred from their basic
freedom, which is against humanity and it basically violates the basic or fundamental
rights of humans. Muslim women were backward in their status as compared to other
women of the world. They were not educated and self-reliant as compared to other
women. Shah Bano case was a normal case just like other cases of maintenance which
has taken place and also the verdict that was concluded by Supreme Court was also
similar to the previous lawsuits but the two naked truth that was witnessed in this case
made this case a landmark judgement case and the two naked truth was- firstly,
spirituality of religious personal laws was criticized and then it was questioned whether
Uniform Civil Code is applied to all religion and their followers and secondly, whether
CrPc is applied to personal religious laws. Even though the verdict of Shah Bano case
given by the Supreme Court was invalidate by the endorsement of Muslim Women Act,
the court held in further verdicts that divorced Muslim women, under Section 125 of
CrPc can affirm maintenance or alimony from their former husband, or apart from this

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divorced Muslim women can assert or claim for round some money or amount under
Muslim Women Act. vii

Total number of times this case has been cited: 199

Cited by Supreme Court cases: 17
Cited by High Court cases: 182
Decision date of most recent cite: Jul 16, 2019 (Punjab And Haryana)

2. Danial Latifi V. Union of Indiaviii

Bench: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju, Shivaraj V. Patil
Decided on September 28, 2001

Introduction:
After the landmark judgment of Shah Bano’s case, there was a chaos condition in the Muslim
Personal Law. Also, there was many political issues and protest. The Parliament to undo the
effect of the judgment, passed and implemented Muslim Women (Protection of Rights on
Divorce) Act, 1986, which provided that under section 3 (1) a, a divorced woman is entitled to
reasonable and fair provision and maintenance within the iddat period.

The one of the counsels of Shah Bano’s Danial Latifi challenged the above Act on the basis of
its constitutional validity as violation of Art 14 and 15.

Facts:
1. Mohd. Ahmed Khan v. Shah Bano Begum, commonly referred to as the Shah Bano case,
was a controversial maintenance lawsuit in India. She filed a criminal suit under Section
125 of the CrPC, ultimately in the Supreme Court of India, she won the right
to alimony from her husband. However, she was subsequently denied the alimony when
the Indian Parliament reversed the judgment under pressure from Islamic orthodoxy.
2. This case caused the government, with its absolute majority, to pass the Muslim
Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the
Supreme Court and, in reality, denied even utterly destitute Muslim divorcées the right
to alimony from their former husbands.

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3. The constitutional validity of The Muslim Women (Protection of Rights on Divorce)

Act 1986 was challenged before the Supreme Court in this case through filing a writ
petition.

Issue: Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 is
constitutionally valid.

Arguments:
The Petitioner (represented by Counsel Smt. Kapila Hingorani and Smt. Indira Jaisingh)
submitted:

i. Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which
defines and governs rights and obligations of the parties belonging to a particular
religion. The basis there being, neglect by a person of sufficient means to maintain these
and the inability of these persons to maintain themselves, these provisions have been
made and the moral edict of the law and morality cannot be clubbed with religion.
ii. The argument is that the purpose of Section 125 CrPC is to off-set or to meet any
particular situation where a divorced wife is likely to be led into destitution. Section
125 CrPC is enacted to prevent the same in furtherance of the concept of social justice
embodied in Article 21 of the Constitution.
iii. The Act is an un-Islamic, unconstitutional and it has the potential of suffocating the
Muslim women and it undermines the secular character, which is the basic feature of
the Constitution; that excluding the application of Section 125 CrPC is violation of
Articles 14 and 21 of the Constitution.

The Respondent (represented by Counsel Shri Y.H.Muchhala and Solicitor General) submitted:

i. Under Section 3 of the Act, it is provided that a reasonable and fair provision and
maintenance to be made and paid by her former husband within the iddat period would
make it clear that it cannot be for life but would only be for a period of iddat and when
that fact has clearly been stated in the provision, the question of interpretation as to
whether it is for life or for the period of iddat would not arise.

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ii. Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not
offend Article 14 of the Constitution. If the legislature, as a matter of policy, wants to
apply Section 125 CrPC to Muslims, it could also be stated that the same legislature
can, by implication, withdraw such application and make some other provision in that
regard. He further submitted that in Shah Bano’s case, it has been held that a divorced
woman is entitled to maintenance even after the iddat period from the husband and that
is how Parliament also understood the ratio of that decision. To overcome the ratio of
the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord
with the personal law.
iii. The Parliament enacted the impugned Act, respecting the personal law of Muslims and
that itself is a legitimate basis for making a differentiation; that a separate law for a
community on the basis of personal law applicable to such community, cannot be held
to be discriminatory; that the object of the Act itself was to preserve the personal law
and prevent inroad into the same. The impugned Act resolves all issues, bearing in mind
the personal law of muslim community and the fact that the benefits of Section
125 CrPC have not been extended to muslim women, would not necessarily lead to a
conclusion that there is no provision to protect the muslim women from vagaries and
from being a destitute; that therefore, the Act is not invalid or unconstitutional.

Judgment:
Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the
husband’s liability to maintain his wife doesn’t end with the iddat period. However, it explained
this principle, not as contravening the Act which was enacted as a result of the Shah Bano case,
as a commentary on that Act. Also, the Act is consistent with section 125 of the CrPC and
hence, there is no scope for conflict. Hence, the position of law is that, the provisions of the
Act basically emanate from principles set forth in the Shah Bano case.
The same has not been changed till now, and continues to govern matters related to
maintenance of Muslim women after dissolution of marriage. The principle has been seconded
by the Supreme Court once again in Iqbal Bano v. State of U.Pix. In the case the court reiterated
the position that divorced women are entitled for maintenance beyond the Iddat period and
stated that provisions of the Act do not contravene Article 14, 15 & 21 of the Indian

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Constitution. The court further observed that “right under Section 125 of Cr. P.C. extinguishes
only when she receives “fair or reasonable” settlement u/Sec. 3 of the Muslim Women Act.
The wife will be entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfils
his obligation u/Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.
This was once again reiterated in the recent judgment in Shabana Bano v. Imran Khanx that
after the expiry of iddat, a divorced Muslim woman can seek maintenance under S.125CrPc as
long as she doesn’t re-marry. Hence, the position as laid down in the Danial Latifi case is the
settled position and has not undergone any change.

Conclusion
Prior to both cases, of Shah Bano’s and the present case, there was bedlam with respect to the
provision of maintenance. But, after the Shah bano’s Case, the MWA, 1986 prescribed some
more guidelines for the application of maintenance. Also, if we see from other point of angle
it could be seen that the act was further approved and supported by the Indian Constitution,
from the supreme law of the India as non-violative and constitutionally valid.

The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi
case fails to satisfy the minds of the reasonable people, as there are glaring defects on the face
of it. But we should also keep in mind the social perspective. On one hand where it upholds the
Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the
divorced Muslim women.

The Muslim women had feared that the 1986 Act had taken away their right to maintenance
beyond the iddat period. But these court judgments have given them hope. The Muslim leaders
are not likely to protest against these judgments as they did in the Shah Bano case and even if
they do, they will not get the kind of response from Muslims as they did in the mid-1980s.xi

3. Bilkis Begum v. Majid Ali Gazi And Orsxii

Hon'ble Judges: D.P. Mohapatra and Brijesh Kumar, JJ. Decided On: 13.03.2002

Facts: The appellant Ms. Bilkis Begum, was the wife of respondent No. 1 Majid Ali Gazi. She
filed an application under Section 125 of the Criminal Procedure Code (Cr. P.C.) claiming
maintenance for herself and for her two minor daughters @ Rs. 500/- per month each. During

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pendency of the proceeding, the respondent divorced the appellant on 7.2.92. Thereafter, she
filed an application under Section 5 of the Muslim Women (Protection of Rights on Divorce)
Act, 1986, stating, inter alia that she prefers to be governed by the provisions of Sections 125
to 128 of the Cr. P.C. instead of the provisions of 1986 Act and sought permission of the
magistrate for the purpose. The said application was rejected by the learned magistrate by order
dated 27.4.94 on the ground that an application under Section 5 of the 1986 Act, has to be made
either jointly or separately by both the parties and an application filed by one of the parties
without consent of the other could not be entertained. She carried the matter to the High Court
in revision wherein the order passed by the magistrate was confirmed and the revision petition
was dismissed. Hence, the grievance of the appellant came to Supreme Court.

Issue: Whether the application filed by the appellant under Section 125 Cr. P.C. claiming
maintenance for self and for minor children could be considered by the magistrate or she had
to seek relief under the 1986 Act?

Judgement: The right of the appellant to claim maintenance for her children from her former
husband under Section 125 of the Cr. P.C. is recognised even after the enactment of the 1986
Act. The position is also settled that liability of the father to maintain his minor children and
unmarried daughters is absolute and in case he defaults, the divorced wife can file an
application under Section 125 of Cr. P.C. claiming maintenance for the children who are living
with her. The application filed under Section 125 of the Cr. P.C. claiming maintenance for the
two children is to be proceeded with by the Magistrate and disposed of applying the provisions
of the Code of Criminal Procedure. So far as the claim of maintenance for the divorced wife is
concerned, the proceedings under Section 125 cannot be proceeded with. She is entitled to
receive her dues according to the 1986 Act, and if she has not yet received the same, she has to
take recourse of the proceedings under that Act, and realise the amount in accordance with law.

Conclusion: In paragraphs 10 and 11 of the judgment, this Court summed up its conclusions
in the following words:"Thus, both under the personal law and statutory law (Section 125 Cr.
P.C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children,
unable to maintain themselves, till they attain majority and in case of females till they get
married, is absolute, notwithstanding the fact that the minor children are living with divorced
wife. Thus, our answer to the question posed in the earlier part of the opinion is that, the

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children of muslim parents are entitled to claim maintenance under Section 125 Cr. P.C. for
the period till they attain majority or are able to maintain themselves, whichever is earlier and
in case of females, till they get married, and this right is not restricted, affected or controlled
by the divorcee wife's right to claim maintenance for maintaining the infant child/ children in
her custody for a period of two years from the date of birth of the child concerned under Section
3(1)(b) of the 1986 Act. In other words, Section 3(1)(b) of the 1986 Act, does not in any way
affect the rights of the minor children of divorced Muslim parents to claim maintenance from
their father under Section 125 Cr. P.C. till they attain majority or are able to maintain
themselves, or in the case of females, till they are married."xiii

4. Iqbal Bano V. State of U.P. And Ors.xiv:

Hon'ble Judge: Dr. Arijit Pasayat and D.K. Jain, JJ. Decided On: 05.06.2007

Facts: The appellant had married respondent in the year 1959 and a child was born to them in
1966. Unfortunately, the son died in the year 1991. He was living separately from the appellant
stopped coming to the house of the appellant where she was staying and also did not pay
anything for her subsistence. Therefore, an application under Section 125 Cr.P.C. was filed on
21.2.1992. Before that she had sent notice demanding payment of maintenance. Respondent
No. 2 replied to the notice and denied his liability to pay maintenance. As noted above, on
21.2.1992 application was filed claiming maintenance of Rs. 500/- p.m. It was stated that that
the income of the husband was Rs. 4,000/- per month. On 28.5.1992 written statement was
filed wherein it was stated that long back he had divorced his wife by utterance the word
"Talaq" "Talaq" "Talaq". It was further stated that there was severance of marital ties between
them for years as the divorce was over by the utterance of the word "Talaq" thrice and he had
also paid Mehr and the Iddat period was over the claim was not acceptable. He also stated he
had contacted the second marriage.

Judgement and Ratio: Even if court notices that there was a Muslim divorced woman it was
open to court to treat application as petition under the Act 1986 A Muslim husband is liable to
make reasonable and fair provision for the future of the divorced wife which obviously includes
her maintenance. Liability of Muslim husband to his divorced wife arising under Section 3(i)(c)

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of Act 1986 to pay maintenance is not confined to the iddat period.Set aside the order. While
upholding the validity of the Act, we may sum up our conclusions:

(1) 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(i)(a) of the Act.

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

(3) A divorced Muslim woman who is not remarried and who is not able to maintain herself
after the iddat period can proceed as provided under Section 4 of the Act against her relative
who are liable to maintain her in proportion to the properties which they inherit on her death
according to Muslim law for such divorced woman including her children and parents. If any
of her relative being unable to pay maintenance, the Magistrate may direct the State Waqf
Board established under the Act to pay maintenance.

(4) The provisions of the Act do not offend Article 14, 15 and 21 of the Indian Constitution.xv

5. Shabana Bano V. Imran Khan:xvi

Hon'ble Judges: B. Sudershan Reddy and Deepak Verma, JJ. Decided On: 04.12.2009

Facts: Appellant Shabana Bano was married to the respondent Imran Khan according to
Muslim rites at Gwalior on 26.11.2001. According to the appellant, at the time of marriage,
necessary household goods to be used by the couple were given. However, despite this, the
respondent-husband and his family members treated the appellant with cruelty and continued
to demand more dowry. After some time, the appellant became pregnant and was taken to her
parents' house by the respondent. The respondent threatened the appellant that in case his
demand of dowry is not met by the appellant's parents, then she would not be taken back to her
matrimonial home even after delivery. Appellant delivered a child in her parental home. Since
even after delivery, respondent did not think it proper to discharge his responsibility by taking
her back, she was constrained to file a petition under Section 125 of the Code of Criminal

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Procedure (for short, 'Cr.P.C.') against the respondent in the Court of Family Judge, Gwalior.
It was averred by the appellant that respondent has been earning a sum of Rs. 12,000/- per
month by doing some private work and she had no money to maintain herself and her new-
born child. Thus, she claimed a sum of Rs. 3000/- per month from the respondent towards
maintenance.

Issue: Whether a Muslim divorced wife would be entitled to receive the amount of
maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then
through which forum?

Laws Applied: Section 4 of Muslim Act reads as under: Order for payment of maintenance:
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other
law for the time being in force, where a Magistrate is satisfied that a divorced woman has not
re-married and is not able to maintain herself after the iddat period, he may make an order
directing such of her relatives as would be entitled to inherit her property on her death according
to Muslim law 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, the standard of life enjoyed by her
during her marriage and the means of such relatives and such maintenance shall be payable by
such relatives in the proportions in which they would inherit her property and at such periods
as he may specify in his order: Provided that 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 the parents of
such divorced woman to pay maintenance to her: Provided further that if any of the parents is
unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of
his or her not having the means to pay the same, the Magistrate may, on proof of such inability
being furnished to him, order that the share of such relatives in the maintenance ordered by
him be paid by such of the other relatives as may appear to the Magistrate to have the means
of paying the same in such proportions as the Magistrate may think fit to order.

(2) 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 mean to pay the
shares of those relatives whose shares have been ordered by the Magistrate to be paid by such

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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.

Section 5 thereof deals with the option to be governed by the provisions of Section 125 to 128
of the Cr.P.C. It appears that parties had not given any joint or separate application for being
considered by the Court. Section 7 thereof deals with transitional provisions. Family Act, was
enacted 14th September, 1984 with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family affairs and for matters connected
therewith.

Judgement: Whether Muslim divorced woman entitled to claim maintenance from her
husband under Section 125, Cr. P.C. after expiry of period of iddat also? Held, "yes" as long
as she does not remarry. Matter remitted to Family court for disposal on merits. Danial Latifi
v. Union of India, and Iqbal Bano v. State of U. P. and another, applied. (2) Code of Criminal
Procedure, 1973 - Section 125-Family Courts Act, 1984 - Section 20-Family Court-
Jurisdiction-It has exclusive jurisdiction over matters relating to maintenance including
proceedings under Section 125, Cr. P.C.

CONCLUSION

From the analysis of above judgments pronounced by the Supreme Court it is evident that the
concept of maintenance is conflicting issue within the purview of various acts. The trends
followed in the judgements gives only one inference that being, justice should be done to each
and every section of the society and women are an important part of that society. Although the
legislation passed has some lacunae especially with regard to section 3 which states that,
maintenance should be given by the husband only for the period of iddat has created all these
problems and helped in pronouncing these judgements. The Supreme Court took its stance
without any bias irrespective of many social and political pressures. It upheld the rights of

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women and guarded the constitutional principles through these various judgements. Although
all of the judgements talk about maintenance the frequency of these case creates the larger
picture and something very big is at stake which is the right to equality. All the times the trend
followed was same and Supreme Court being the final arbiter of Constitution protected the
fundamental rights of women. The frequency of cases regarding maintenance filed in supreme
court has seen huge increase and this implies that the laws regulated have shown some effect
on the ground reality.

The research answers almost all the questions, the very first one being the aftermath of the
legislation. Many cases were filed under this act but the provisions were used against the victim
and for the benefit of the husband, contrary to the name of the act. This leads to the second
question which talks about the conflict between the act and CrPC. As already established in the
above case analyses there is no conflict between the two and both of them do not cross their
paths and strive towards upliftment of women. One more noteworthy point is that women can
claim maintenance under both the acts subsequently but not simultaneously and the acts
supplement each other.

Before these judgements came into place maintenance post-divorce was a controversial topic
under Muslim law. Fortunately, the judiciary has decisively shown benevolence towards
Muslim women and these women have evidently been empowered, especially divorced women
whose position was even worse. Also, laws which hamper the application of general laws with
reference to the basic livelihood of a divorced woman as is assured under Article 21 of the
Indian Constitution should be struck down. To avoid any future derogation of law and conflict,
the State must try to implement a uniform civil code under Article 44 of the Indian Constitution
in some measure with respect to the essential and basic aspects of personal laws.

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REFERENCES

i
AIR 2001 SC 958
ii
AIR 1985 SC 945
iii
AQIL AHMAD, MOHAMMEDAN LAW, 26TH EDITION.
iv
Supra note 2.
v
Supra note 1.
vi
Supra note 2.
vii
MANU/SC/0194/1985
viii
(2001) 7 SCC 740
ix
AIR 2007 SC 2215
x
AIR 2010 SC 305
xi
MANU/SC/1639/2001
xii
Criminal Appeal No. 466 of 2002 (Arising out of SLP (Cri.) No. 2162 of 2001)
xiii
MANU/SC/0492/2002
xiv
Supra note 9.
xv
MANU/SC/2545/2007
xvi
Supra note 10.

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