Maintenance of divorced wife in Muslim law
In Muslim law, the maintenance of a divorced wife is a complex issue with provisions stemming from classical Islamic law, statutory enactments, and judicial interpretations. The primary legal framework in India governing this is the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was enacted in the aftermath of the Shah Bano case.
Here's a discussion of the maintenance of a divorced wife in Muslim law:
1. Maintenance during the Iddat Period:
• Under traditional Muslim law, a husband is obligated to maintain his divorced wife only during the period of Iddat. Iddat is a waiting period a divorced Muslim woman must observe before she can remarry. The duration of Iddat varies based on circumstances (e.g., three menstrual cycles, three lunar months, or until delivery if pregnant).
• The Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3(1)(a) codifies this obligation, stating that a divorced woman is entitled to "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband."
2. "Reasonable and Fair Provision":
• The interpretation of "reasonable and fair provision" under the 1986 Act has been a subject of much debate and judicial scrutiny.
• The Supreme Court in the Danial Latifi case (2001) held that this provision is not limited to the Iddat period. The court interpreted that a "reasonable and fair provision" should be made by the husband within the Iddat period, but it is intended to cover the divorced woman's future needs and extend beyond the Iddat. This provision aims to ensure that the woman has sufficient means of sustenance after the divorce and does not become destitute.
• The quantum of this provision is not fixed and depends on various factors, including the financial capacity of the husband, the needs of the divorced wife, the standard of living during the marriage, and the amount of mahr (dower) received.
3. Maintenance for Children:
• Section 3(1)(b) of the 1986 Act also provides that where a divorced woman herself maintains the children born to her before or after the divorce, she is entitled to "a reasonable and fair provision and maintenance" to be paid by her former husband for a period of two years from the respective dates of birth of such children.
4. Recourse if Husband Fails to Provide:
• Section 3(2) of the 1986 Act states that if the former husband fails to make reasonable and fair provision and maintenance or fails to pay the mahr or return her properties, the divorced woman can file an application before a Magistrate.
• The Magistrate can then pass an order directing the former husband to pay such provision and maintenance and the mahr or deliver her properties.
5. Maintenance Beyond Iddat if Unable to Maintain Herself:
• Section 4 of the 1986 Act addresses the situation where a divorced woman is unable to maintain herself after the Iddat period and has not remarried. In such cases, the Magistrate can order her relatives who would inherit her property upon her death to maintain her in proportion to the shares they would inherit.
• If she has no such relatives or if they do not have the means to maintain her, the Magistrate can order the State Waqf Board to pay the maintenance.
6. Option to be Governed by Section 125 CrPC:
• Section 5 of the 1986 Act gives the divorced Muslim woman and her former husband the option to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973. Section 125 CrPC provides for maintenance to a wife (which includes a divorced wife who has not remarried) who is unable to maintain herself, irrespective of her religion.
• This option needs to be exercised by filing a joint declaration before the Magistrate.
Interaction with Section 125 CrPC:
• Before the 1986 Act, divorced Muslim women could claim maintenance under Section 125 CrPC, as held in the Shah Bano case (1985). This judgment was met with significant controversy, leading to the enactment of the 1986 Act.
• Despite the 1986 Act, the Supreme Court has consistently held that Section 125 CrPC is a secular provision and provides an independent remedy for divorced women, including Muslim women, especially if they choose to be governed by it or if the provisions of the 1986 Act are not adequately enforced.
• Recent judicial pronouncements have emphasized that the rights under the 1986 Act are in addition to, and not in derogation of, the rights available under Section 125 CrPC.
Conclusion:
The maintenance of a divorced wife in Muslim law is primarily governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986, which mandates the husband to make a reasonable and fair provision and maintenance within the Iddat period, extending beyond it to cover future needs. The Act also addresses the maintenance of children and provides recourse through the courts if the husband fails to fulfill these obligations. Furthermore, if the divorced woman is unable to maintain herself after the Iddat, the responsibility shifts to her relatives or the Waqf Board. Importantly, the option to seek maintenance under the secular provision of Section 125 CrPC remains available to divorced Muslim women. The judiciary has played a crucial role in interpreting these provisions to ensure that the rights of divorced Muslim women are adequately protected.
