INTRODUCTION

Under Islamic law maintenance or Nafaqa (Nafqa) arise out of three reasons – i) marriage ii)
relations and iii) property. Maintenance in this context means food, raiment and lodging , though
it generally refers to only food. A Muslim is required to maintain his other relations only if he
has the means. But a Muslim husband is duty bound to provide maintenance to his wife, even if
he is poor, if the marriage is sahih or lawful. But the wife never need to maintain the husband.
The quantam of maintenance is decided as per the classical law, so under the Hanafi law position
of both the spouses is taken into consideration, the Shafei law considers only the husband’s
position and the Isna Ashari and Ismaili laws takes into account the wife’s needs and the local
custom prevalent. The Hanafi school does not permit past maintenance(including divorced
wives) but the other school of the Shia sect, the Shafei school allows past maintenance and in the
words of the renouned Muslim law scholar Tahir Mahmood opines that this rational provision
deserve to be applied to the Muslim women of all schools.

In India the Shariat Act, 1937 also recognizes the Muslim wife’s right to maintenance. The
section 488 of the old Code of Criminal Procedure1898 provides for criminal action by virtue of
magistrate’s orders for maintenance of wives which included Muslim wives too, as held in the
case of Shahulmeedu v. Subaida Beevi. The Kerala High Court held that s. 488(3) of the
Cr.P.C, applied to all Indian wives including Muslim wives.

The sections 125-128 of the new Code of Criminal Procedure 1973 retained the old provisions
and now included the divorced wives too. A divorced wife now could ask for maintenance from
the former husband if she was unable to maintain herself and the former husband even after
having sufficient means neglects or refuses to maintain her. In various Supreme Court judgments
in between 1979 and 1985 like Bai Tahira v. Ali Hussain Fidaalli Chothia 1 and Fazlunbi v. K.
Khader Vali2 held that Muslim women is entitled to maintenance under Section 125 and dealt
with question of payment of maher under Muslim personal law. The order of the magistrate stood
cancelled under Section 127(3) only if the women’s entitlement was paid fully under Personal
law and this post divorce entitlement did not include the Maher which is considered as an

1 1979 AIR 362, 1979 SCR (2) 75

2 1980 AIR 1730, 1980 SCR (3)1127
attribute of marriage and not divorce or she remarries or had voluntarily given up her right of
maintenance . The main controversy arising in this situation is regarding Muslim women’s right
to maintenance after the divorce. Prior to the Supreme Court judgement in Mohd Ahmed Khan
v. Shah Bano Begum3 , it was generally held that the Muslim women did not have any right of
maintenance once the period of iddat(period of separation) is over. But in this case the Supreme
Court held that divorced Muslim women had the right to maintenance even after the period of
iddat was over.

3 1985 AIR 945, 1985 SCR (3) 844

FACTS IN BRIEF:-
In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 was challenged before the Supreme Court. The Act was passed to appease a particular
section of the society and with the intention of making the decision in case of Mohd. Ahmed
Khan v. ShahBano Begum in effective. In the Shahbano’s case, the husband had appealed against
the judgment of the Madhya Pradesh High Court which had directed him to pay to his divorced
wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month originally granted by the
Magistrate. The parties had been married for 43 years before the ill and elderly wife had been
thrown out of her husband's residence. For about two years the husband paid maintenance to his
wife at the rate of Rs. 200/- per month. When these payments ceased she petitioned under
Section 125 of the Code of Criminal Procedure (Cr.P.C.). The husband immediately dissolved the
marriage by pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to
cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to
have the petition dismissed on the ground that she had received the amount due to her on divorce
under the Musilm law applicable to the parties. The important feature of the case was that wife
had managed the matrimonial home for more than 40 years and had borne and reared five
children and was in capable of taking up any career or independently supporting herself at that
late state of her life - remarriage was impossibility in that case. The husband, a successful
Advocate with an approximate income of Rs. 5,000/-per month provided Rs. 200/- per month to
the divorced wife, who had shared his life for half a century and mothered his five children and
was in desperate need of money to survive.
ARGUMENTS:-
The petitioner argued-

(a) that the rationale of Section 125 Cr.P.C. was to offset or meet a situation wherein a divorced
wife was likely to be led into destitution or vagrancy. It was urged that Section 125 Cr.P.C. was
enacted to prevent such a situation in furtherance of the concept of social justice embodied in
Article 21 of the Constitution.

(b) That the object of Section 125 Cr.P.C. being to avoid vagrancy, the remedy there under could
not be denied to a Muslim woman otherwise it would amount to violation of not only equality
before law but also equal protection of laws (Article 14) and inherent infringement of Article 21
as well as basic human values.

(c) That the Act was un-Islamic, unconstitutional and had the potential of suffocating the Muslim
women while also undermining the secular character, which was the basic feature of the
Constitution. And thus there was no rhyme or reason to deprive the Muslim women from the
applicability of the provisions of Section 125 Cr.P.C.

Defending the validity of the enactment, it was argued on behalf of the respondents that

(a) if the legislature, as a matter of policy, wanted to apply Section 125 Cr.P.C. to Muslims, it
also meant that the same legislature could, by necessary implication, withdraw such an
application of the Act and make some other provision in that regard.

(b) Parliament could amend Section 125 Cr.P.C. so as to exclude it application and apply
personal law instead.

(c) That the policy of Section 125 Cr.P.C. was not to create a right of maintenance dehors the
personal law and therefore could not stand in the way of the Act.
The Danial Latifi judgment: A Critical Analysis: The most controversial question which has
been politically significant in the recent past in the background of a secular constitution and the
concept of welfare state is that whether or not a divorced Muslim woman after divorce post iddat
period is entitled to maintenance by her husband or not. The iddat period is generally considered
to be three menstrual courses if she is subject to menstruation, three lunar months if she is not
subject to menstruation or if she is pregnant at the time of her divorce the period between her
divorce and the delivery of child or the termination of pregnancy, whichever is earlier. Generally
it is taken to be three months. A divorced Muslim woman is entitled to maintenance from her
husband during the period of iddat, after that Muslim personal law though nowhere expressedly
permits maintenance after divorce but it also does not prohibits, specifically or impliedly, it
anywhere. In fact interpretation of the Holy Quran shows that the Islam as a religion calls for
providing maintenance to a divorced woman on a reasonable scale, and this is a duty of every
righteous god fearing person . But this interpretation was highly debated upon and was
considered as out of purview of the court as the court itself had decided that they would not be
interpreting the religious texts, when it was so discussed in the case of Mohd Ahmed Khan v.
Shah Bano Begum.

Smt. Kapila Hingorani and Smt. Indira Jaisingh, the Counsels standing on behalf of the
petitioners contended that the expression 'wife' as included in the purview of the Section 125 of
the Code of Criminal Procedure is a woman who has been divorced by, or has obtained a divorce
from her husband and has not remarried. The religion professed by a spouse or the spouses has
no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or
the Parsis, pagans or heathens. This provision is not a part of the civil law applicable selectively
to parties belonging to a particular religion but a criminal remedy applicable to all on a secular
basis, the basis there being, neglect by a person of sufficient means to maintain these and the
inability of these persons to maintain themselves. The very spirit of this provision was the moral
edict of law and morality could never be clubbed with religion . It was also further contended
that Section 125 of the Code of Criminal Procedure is a provision made in respect of women
belonging to all religions to avoid vagrancy after marriage and exclusion of Muslim Women
from the same results in discrimination between women and women and so violating Article 15
of the Constitution. There is a violation of not only equality before law but also equal protection
of laws and thus violating Article 14 which in turn inherently infringes Article 21 as well as basic
human values.

The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra
Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil upheld the
Constitutional validity of the Act. The forward step taken by the same Court in the Shah Bano in
the face of religious fanaticism was undone as the Court in the rationale said that, “Legislature
does not intend to enact unconstitutional laws”. While it accepts social reality of a male
dominated society, it fails to take recognition of the fact that the Act is inherently discriminatory.
This can be very well proved by the fact that it brings within its purview only ‘divorced woman’
who has been married according to Muslim law and has been divorced by or has obtained
divorce from her husband in accordance with the Muslim law. But the Act excludes from its
purview a Muslim woman whose marriage is solemnized either under the Special Marriage Act,
1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969
or the Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim
wives. Section 4 of the Act makes the relatives of the Divorced woman or the state wakf board
responsible for the maintenance of the Divorced woman. But reality is that it is quite improbable
that she will get sustenance from the parties who were not only strangers to the marital
relationship which led to divorce. Also, wakf boards would usually not have the means to
support such destitute women since they are themselves perennially starved of funds and the
potential legatees of a destitute woman would either be too young or too old so as to be able to
extend requisite support. Further more, the Court fails to answer the necessity of an Act,
segregating Muslim women completely when a secular remedy is already available under the
Section 125 of the Code of Criminal Procedure. Hindu women have their right to maintenance
recognized under the Hindu Adoptions and Maintenance Act, 1956 but that no way bars her from
claiming maintenance under Section 125 of the Code of Criminal Procedure.

The justification of the law being non discriminatory based on a reasonable classification and so
not violative of Article 14 of the Constitution of India does not hold good because a law for
maintenance to divorced women was already in force and available to every women of India,
irrespective of their caste, creed, religion. The proposition put forward that the Act in spirit tries
to respect the provisions in the Personal Law does not hold good as it being a codified Law, has
to pass the acid test of the Constitution, which it miserably fails. Another, fact to be noted is that
Section 5 of the Act gave option to the parties to the divorce, the husband and the wife, to decide
mutually to be governed either by Sections 125-128 of the Cr. PC or the provisions of the Act.
But the main criticism leveled against this section was that which Muslim husband would like to
go through the rigours of the Cr.PC provisions when he can be governed by a much easier law.
The Section 7 of the Act also provided that the pending applications under the Cr.PC were to be
dealt within the purview of this Act. But Gujarat High Court has held in the case of Arab
Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai 4 that a divorced Muslim woman can
directly move to the Court under the Cr PC provisions.

However, in the middle path approach undertaken by the Supreme Court becomes evident as it
reiterates the stand of the Gujarat, Kerala and Bombay High Courts earlier in this regard. The
poorly drafted provisions of the Act, especially section 3, provided the Court with ample scope
of interpretation. The bench laid special emphasis on the two words- ‘maintenance’ and
‘provision’ and distinguished between the precision of use of the two words as provision to be
‘made’ and maintenance to be ‘paid’. The time frame or the iddat period mentioned was held to
be the time limit within which both maintenance for the iddat period and a ‘reasonable and fair
provision’ for the future in the form of a lump sum was to be paid to the divorced wife to avoid
future vagrancy. The interpretation given to the Act by the Courts thus codified the Shah Bano
ratio, while it tried to nullify it. The Supreme Court through this judgement put to rest the
controversy relating to the interpretation of Holy Quran raised during the Shah Bano case and
did not delve into that, but concluded that the word “mata” as interpreted in Muslim personal
laws would support the Court’s view of the term ‘provision’ as one time lump sum payment.

4 AIR 1988 Guj 141, (1988) 1 GLR 452

Conclusion and present scenario:

Before the Danial Latifi judgement, the expression “provision and maintenance” created
confusion as the High Court of Kerala in Ali v. Sufaira the Bombay High Court in the case of
Abdul Rahman Shaikh v. Shehnaz Karim Shaikh 5 and the Gujarat High Court in the case of
Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai6 that the expression reasonable
and fair provision meant arrangement for a lump sum amount for the future provision of the wife
within the iddat period other than the iddat period maintenance. But contrary opinions were
given by the judgements of the Andhra Pradesh High Court in the case of Usman Bahmani v.
Fathimunnisa7 and the Calcutta High Court in the case of Abdul Rashid v. Sultana Begum and it
was held that both expressions provision and maintenance meant the same, and it covered only
maintenance for the iddat period only. After this judgement the judiciary has held in the cases
like in the cases of Bilkis Begum v. Majid Ali Gazi8 it was held that claim of maintenance of the
divorced wife cannot be proceeded under Section 125 of the Cr PC after the enactment of the
1986 Act.

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 defectes 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 Court could envisage that the country at such a juncture of
Economic and Social growth, could not bear the burden of aftermath of another Shah Bano. But
keeping in mind the changing times and the constantly evolving meaning of Article 21of the
Constitution, which has been held to include the ‘right to live with dignity’ under the case of
Olga Tellis v. Bombay Municipal Corporation9 and Maneka Gandhi v. Union of India , it is
a duty of the society to make sure that the divorced Muslim wife have the provision to maintain
herself with dignity and is not led to destitution and vagrancy. The Personal law may connote a
different thing but keeping the changing society in mind, it should be open to interpretation only

5 2000 (5) BomCR 758, 2000 CriLJ 3560, II (2000) DMC 634
6 AIR 1988 Guj 141, (1988) 1 GLR 452
7 AIR 1990 AP 225, 1990 CriLJ 1364
8 JT 2002 Suppl 1 SC 115
9 1986 AIR 180, 1985 SCR Supl. (2) 51
for positive changes. That only can help us achieve the objectives of Social Justice laid down
both expressedly and implicitly in our Constitution.