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Maintenance of Muslim Under Muslim Law

What Are The Laws Related To Maintenance For Muslim Women?

Under Muslim Law the husband is duty bound to maintain his wife regardless of her and his means and the minor children, if he is not indigent. He is obliged to maintain his other relatives from whom he can inherit, if he has means to do so, and they are impecunious or destitute. The word maintenance relates to the maintenance of wife during marriage or post dissolution i.e. after divorced, for widows, as well as the children, the old and infirm parents and even concubines etc. [1]

In Arabic, maintenance is called Nafaqa, which in its literal sense means, What a husband spends over his family and in the legal sense the maintenance symbolizes and is inclusive of mainly three things which are clothing, lodging as well as food.[2] Usually the maintenance for Muslim women is inclusive of food, clothing as well as lodging. The Maintenance is the name which is given every week or even every month payments and this may be ordered by the court on decree of a divorce, or when a marriage is declared null and void the husband has to provide the wife with the maintenance and thus is for supporting of the wife financially. [3]

The obligation of the husband to financially support his wife and children is called Kharcha-i-pandan. It is the duty of the wife to be subservient towards the husband and it also allows free access to the husband at all rational times. Kharch-i-pandan is the entire property of the wives and she has the authority to use it in accordance to her own sweet will. Basically, it is the personal allowance of the wife and therefore, it cannot be transferred to another person even though the payment is acquired on the immovable property. The Muslim Law of Maintenance is maintained on certain grounds. [4]

The quantam of support is chosen according to the Muslim law, so under the Hanafi law position of both the mates is contemplated, the Shafei law considers just the spouse's position and the Isna Ashari and Ismaili laws considers the wife's needs and the nearby custom predominant. The Hanafi school doesn't allow past support including separated from spouses) however the other school of the Shia group, the Shafei school permits past upkeep and in the expressions of the renouned Muslim law researcher Tahir Mahmood opines that this discerning arrangement have the right to be applied to the Muslim ladies everything being equal.[5]

The Muslim law does provide provisions for the maintenance to the relatives but the provisions are few in number and as a basic rule there is no relationship except that of a wife that too who is in easy circumstances has the claims from husband for the maintenance. Muslim man and woman are duty-bound for providing and is also eligible to receive the maintenance from their ascendants and descendants excluding certain circumstances. In accordance with the Muslim law, the persons who are entitled to the maintenance are those who are destitute and prerequisite and are also unable to earn livelihood for themselves and also even support themselves. [6]

A person is liable for maintenance or Nafaqa on the account that the person is the wife and the relative and the term relative is inclusive of children, aged parents, grandchildren and other relatives and also sometimes the servant. Rudiments for the claim includes firstly the person who does not have any property of her/his own, secondly the persons who are within the prohibited degrees to the person, and thirdly the person from whom such a claim is made is in easy circumstances. [7]

The term easy circumstances elucidated (according to Muslim Lawyers) means a sum of the wealth such as it would bestow the processor responsible in accordance to their religion to pay the Zakat which means the poor rate and this would counteract him from being a suitable recipients of monies out of the proceedings of Zakat. A Muslim man is duty bound and it is obligation upon him for maintaining his ascendants, descendants, collaterals and also his wife.[8] There father-in-law has no obligation to look after the widow of his son. [9]

The wife during continuation of the marriage comes first according to the mundane order of the natural events. The rights of maintenance to the wife in such a case are absolute and they are to remain impartial even if she has her own property or income and the husband is destitute. A husband is dutybound to take care of his wife financially regardless of him being Muslim man who is destitute or well-off, young or aged and other terms for such an allowance are guzara, mawa-khori, kharch-i-pandan. But there are certain conditions which need to be fulfilled by the wife as well.

The wife must have attained the age of puberty which is defined as an age at which the conjugal rights can be rendered to the husband by her which in turn means that she should be competent to have sex physically. Also she should place and indeed offers to place herself in his power which would allow him access which is free to her at all reasonable and lawful times. She should also conform with all his commands which are lawful in nature. [10]

The right to maintenance of the wife is ceased with the death of the husband and her right of inheritance also impinges. There is no entitlement to be maintained for the women in the course of the iddat of death but under the Muslim Law, a wife who is divorced is also eligible to be sustained by her ex-husband during the iddat period. In the holy book of Quran, the verses also give a crystal clear image that a women who is divorced has the right for maintenance till the expiration of the period of iddat and in case she is expecting/pregnant then this period would get extended upto the time of delivery of the child. [11]

There is also a provision in the Criminal Code Procedure 1973 (CrPc) for providing of the maintenance to the wife irrespective of the religion. Under the Criminal Procedure Code 1973's Section 125 the word wife is inclusive of a wife who has acquired divorce from the husband and hasn't remarried or a divorced wife. The husband is responsible for the maintenance of his divorced wife until the period of iddat has expired and the duty terminates after the expiration of the iddat period according the the Muslim Law. [12]

This is contrary and not accepted under the Cr.P.C 1973 and under this code it is the duty of the former husband to maintain the divorced wife and she is entitled to be maintained by him even after the expiration of the period of iddat as long as she has remained unmarried.

Under Section 127 (3) of the act, there are certain limitations to providing of the maintenance to the divorced wife and firstly where a woman shall not be entitled to be paid any maintenance if she has remarried, secondly when the wife has accepted the full sum under the customary or personnel law which the marriage is governed by, and thirdly where the rights to maintenance after her divorce have been voluntarily capitulated or surrendered by the wife herself. This was given in the case of Zohra Khatoon v Mohd Ibrahim. [13]

Landmark Judgements In Maintenance Law For Muslim Women

In Shah Bano Begum v. Mohd. Ahmad Khan, the five judges constitution bench of the Supreme Court held that a Muslim husband having adequate methods must give upkeep to his separated from wife who can't keep up herself . regardless of whether the life partners are Hindus, Muslims, Christians .and so on is completely insignificant to the use of segment 125 of Cr.P.C . It was held that a Muslim Divorced lady who can't keep up herself is qualified for upkeep from her previous spouse till the time she gets remarried. [14]

Under the personal law, the conflict that conceds Mahri (Dower) is a payment on the separation of the wife and consequently such payment prohibits the payment of any upkeep by the husband to the wife was additionally dismissed. It was said that under Section 127 (3) (b) of Cr.P.C. Mahr is a sum which the wife is qualified for get from the husband in light of the marriage after the marriage is dissolved.[15]

In the case of Mst. Zohara Khatoon v M Ibrahim it was said that if the husband disregards or repudiates for maintaining his wife without any legitimate cause, he may be sued by his wife for the allowance either under the under section 125 and S.126 of Cr.P.C, 1973 or the Muslim law. Presently the law relating to the maintenance of Muslim divorced woman administered by the Muslim Women (Protection of Rights on Divorce) Act, 1986 and there is no application of Section 125 Cr P C so far as Muslims are concerned. [16]

The decision of the Apex Court in Mohd. Ahmed Khan v. Shah Bano Begum and Ors. has prompted some discussion with regards to the commitment of the Muslim husband to pay support to the separated from wife. Opportunity has, along these lines, been taken to determine the rights which a Muslim separated from wife is qualified for at the time of separation and to ensure her inclinations.

The Bill likewise accommodates the accompanying in addition to other things, to be specific. A Muslim man separated from wife will be qualified for a sensible and reasonable arrangement and maintenance during the time of iddat by her ex-husband and on the off chance that she maintains the children which to her previously from her ex-husband or after her separation, such sensible arrangement and support would be reached out to a time of two years from the dates of birth of the kids.

She will likewise be eligible for getting mahr or dower and every one of the properties given to her by her family members, companions, spouse and the husband's family members. On the off chance that the above advantages are not given to her at the time of separation, she is qualified for applying to the Magistrate for a request guiding her previous spouse to accommodate such support, the installment of mahr or dower or the conveyance of the properties. [17]

Where a Muslim divorced woman can't keep up herself or maintain herself after the time of iddat, the Magistrate is enabled to make a request for the installment of support by her family members who might be qualified for acquire her property on her demise as per Muslim Law in the extents in which they would acquire her property.

If any of such family members can't pay their offer on the ground of their not having the groans to pay, the Magistrate would coordinate different family members who have adequate intends to pay the portions of these family members moreover. Be that as it may, where, a divorced husband has no family members or such family members or any of them has insufficient intends to pay the support or different family members who have been solicited to pay the offers from the defaulting family members additionally don't have the way to pay the portions of the defaulting family members the Magistrate would arrange the State Wakf Board to pay the maintenance requested by him or the portions of the family members who can't pay. [18]

In India the Shariat Act, 1937 additionally perceives the Muslim wife's entitlement to maintenance. The Section 488 of the earlier Code of Criminal Procedure1898 accommodates criminal activity by righteousness of judge's requests for maintenance which included Muslim wives as well, as held in Shahulameedu v. Subaida Beevi. The Kerala High Court held that s. 488(3) of the Cr.P.C, applied to every single Indian spouse including Muslim wives[19].

In different Supreme Court decisions in the middle of 1979 and 1985 like Bai Tahira v. Ali Hussain Fidaalli Chothia and Fazlunbi v. K. Khader Vali held that Muslim ladies is qualified for support under Section 125 and managed question of payment of mahr under Muslim Personal Law. This judgment was trailed by different repercussions in the Muslim people group who felt their confidence was under risk.

The Muslim Wakf Board opined that the Apex Court wasn't right in deciphering the heavenly Quran according to a legal stand taken whereby it was held that the court would not translate strict sacred texts or holy books. The parliament to fix the impact of this judgment passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which gave that under Section 3(1)(a) a separated from women is qualified for sensible and reasonable arrangement and support during the iddat period. [20]

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) appeared to overrule the Supreme Court's choice in Mohd. Ahmed Khan v. Shah Bano Begum. In accordance with a by all appearances perusing of the MWPRDA, 1986, a Muslim spouse was mindful to keep up his separated from wife just for the iddat period and after such period the onus of keeping up the lady would move on to her family members.

The issue re-emerged under the watchful eye of the Supreme Court in Danial Latifi v. Union Of India when the established legitimacy of the MWPRDA, 1986 was tested in light of the fact that the law was prejudicial and violative of the privilege to equity ensured under Article 14 of the Indian Constitution as it denied Muslim ladies of upkeep benefits proportionate to those gave to other ladies under Section 125 of Criminal Procedure Code, 1973.

Further, it was contended that the law would leave Muslim ladies desperate and along these lines was violative of the privilege to life ensured under Article 21 of the Indian Constitution. The Supreme Court, on an imaginative elucidation of the MWPRDA, 1986, maintained its lawfulness. It held that a Muslim husband is at risk to make sensible and reasonable arrangement for the eventual fate of his divorced wife stretching out past the iddat period.

The Court put together this understanding with respect to "arrangement" in the MWPRDA, 1986, demonstrating that "at the time of divorce of the Muslim husband is required to examine the future needs [of his wife] and make preliminary courses of action ahead of time for addressing those necessities".

This case is significant in light of the fact that, it built up just because that a Muslim spouse's risk to give support to his divorced wife stretches out past the iddat period, and he should understand his commitment inside the iddat period, along these lines finding some kind of harmony between Muslim personal law and the Criminal Procedure Code, 1973.[21]

Conclusion
The maintenance which is provided to the women under the Muslim Law is governed by the personal law of the Muslims which is separate from the other sections under the Constitution of India. The maintenance provided to the wife and the divorced wife is in accordance with the income of the husband and it needs to be a reasonable one and it should be able to provide the wife such an amount which is sufficient for her in the future as well but it is provided till the iddat period and cannot be provided post iddat unless the wife is pregnant at the time of divorce. The maintenance is also in accordance with the Muslim Personal law and a man cannot refuse this to the wife even if he is a destitute.

There is a disparity in the maintenance that is provided to the wife during the marriage and post the dissolution because the wife can get as much as she needs during the marriage from her husband but post the divorce, the maintenance which is provided to her would be for a limited period of time and in case she is in the custody of the kids, then the husband has to maintain the kids and pay for their expenses including education.

For the boy the maintenance needs to be paid till the time he has attained majority and for a female child, the maintenance needs to be paid until her marriage. This is a discrimination for the women after the divorce in providing the maintenance because it is not absolute but limited to the iddat period itself and the future needs are not taken care of for the women.

The two landmark cases in the Indian history for the maintenance for Muslim women are Shah Bano Begum and Danial Latiffi and these two cases have helped shape the legislation itself. In noteworthy number of cases, a concerned and touchy legal view cut out a space for the maintenance for women privileges from what gave off an impression of being a wrongly imagined, seriously figured and outrightly oppressive rule without summoning political backfire.

Yet, the investigation additionally uncovered the degree of vulnerability and subjectivity that administers legal proclamations and gives a false representation of the prominent idea that an establishment, at any rate gives sureness and consistency. The Judicial pendulum swung from one finish of the range to the next, spreading perplexity and disarray as it were.

There is nothing un-Islamic about the longing of wife to ask for maintenance. Lawyers rehearsing in present day court and prepared in modem Law receives different systems for crushing the privileges of wife directly for maintenance. The wife's ethical character is tested with no substance in light of the fact that an unchaste wife isn't entitled for upkeep. The other reason is that the wife is winning and that the husband is too poor to even think about maintaining her. Another system is to express that wife herself has pulled back from the general public of the husband. Notwithstanding these systems, the new Act gave Muslim wife extra protection.

Bibliography
Books:
  1. The Muslim Women (Protection of Rights on Divorce) Act 1986
  2. Ameer Lai :Mohammedan Law, Vol II
  3. Kahkanshan Danyal's Muslim Law of Marriage, Dower, Divorce and Maintenance
  4. Anwar Ahmad Qadri and Vijay Malik's Muslim Law of Marriage, Divorce and Maintenance
  5. Fyzee Outlines of mohammdan law
  6. Maintenance in Muslim Law (May 7, 2019) Law Times Journal
Articles:
  1. Anusha Vijayavargiya's, Maintenance of Wife and Children under Muslim Law
  2. Asghar Ali Engineer's, Muslim Women and Maintenance
  3. Shivi's, Maintenance under Muslim Laws in India
  4. Dhananjay Mahapatra's Law is equal for all religions: Man must pay maintenance to wife, kids and parents The Economic Times
  5. Aishwarya Anand's Maintenance for Muslim Women in India
Case List:
  1. Bai Tahirav. Ali hasan fasali and Fazlunbi v.K. Khadar Ali
  2. Zohra Khatoon V Mohd Ibrahim
  3. Shah Bano Begum v. Mohd. Ahmad Khan
  4. Shahulameedu v. Subaida Beevi
  5. Danial Latifi v Union of India
End-Notes:
  1. The Muslim Women (Protection of Rights on Divorce) Act 1986
  2. Ameer Lai :Mohammedan Law, Vol II
  3. The Muslim Women (Protection of Rights on Divorce) Act 1986
  4. Kahkanshan Danyal's Muslim Law of Marriage, Dower, Divorce and Maintenance (Edn 3 -April 2015) pg 213
  5. Dhananjay Mahapatra's Law is equal for all religions: Man must pay maintenance to wife, kids and parents The Economic Times (April 13, 2015)
  6. Anwar Ahmad Qadri and Vijay Malik's Muslim Law of Marriage, Divorce and Maintenance (Edn 3) p148
  7. Fyzee: Outlines of mohammdan law 3rd edn p202
  8. Fyzee: Outlines of mohammdan law 3rd edn p251
  9. Ameer Lai :Mohammedan Law, Vol II
  10. Maintenance in Muslim Law (May 7, 2019) Law Times Journal
  11. Aishwarya Anand's Maintenance for Muslim Women in India (31 May, 2016) International Journal of Advance Research (IJAR)
  12. Bai Tahirav. Ali hasan fasali , AIR 1979 SC 362; Fazlunbi v.K. Khadar Ali AIR 1980 SC 1730
  13. Zohra Khatoon V Mohd Ibrahim AIR 1981 SC 1924
  14. Shah Bano Begum v. Mohd. Ahmad Khan AIR 1985 SC 945
  15. Section 127 (3) (b) of Criminal Procedure Code 1973
  16. Mst. Zohara Khatoon v M Ibrahim AIR 1986 SC 587
  17. Shah Bano Begum v. Mohd. Ahmad Khan AIR 1985 SC 945
  18. Shah Bano Begum v. Mohd. Ahmad Khan AIR 1985 SC 945
  19. Shahulameedu v. Subaida Beevi MANU/SCOR/55373/2012
  20. Bai Tahirav. Ali hasan fasali , AIR 1979 SC 362; Fazlunbi v.K. Khadar Ali AIR 1980 SC 1730
  21. Danial Latifi v Union of India [(2001) 7 SCC 740]

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