Can Muslim woman claim maintenance after divorce from husband?

[Anonymous]

Is it possible for a Muslim woman to claim maintenance from her husband after her divorce from husband?

[Dr. Ashok Dhamija]

Before the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 Cr.P.C. until she may remarry.

Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) of the said Act, the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband.

Interpreting the provisions of the above Act, in the case of Danial Latifi v. Union of India, (2001) 7 SCC 740, a Constitution bench of the Supreme Court held as under:

“A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word “provision” indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”

In the above judgment, the Supreme Court concluded as under:

(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(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act.

(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act to pay maintenance is not confined to the iddat period.

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

It is pertinent to point out that in a subsequent judgment of a Constitution bench of the Supreme Court in the case of Khatoon Nisa v. State of U.P., (2014) 12 SCC 646, a question arose whether a Magistrate is entitled to invoke his jurisdiction under Section 125 of the Cr.P.C. to grant maintenance in favour of a divorced Muslim woman. Dealing with the said issue the Supreme Court ruled that subsequent to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, as it was considered that the jurisdiction of the Magistrate under Section 125 of the Code can be invoked only when the conditions precedent mentioned in Section 5 of the said Act are complied with. The Supreme Court noticed that in the said case the Magistrate had returned a finding that there having been no divorce in the eye of the law, he had the jurisdiction to grant maintenance under Section 125 of the Code of Criminal Procedure. The said finding of the Magistrate had been upheld by the High Court. The Constitution Bench in the said case, in that context, ruled as under:

“…The validity of the provisions of the Act was for consideration before the Constitution Bench in the case of Danial Latifi v. Union of India. In the said case by reading down the provisions of the Act, the validity of the Act has been upheld and it has been observed that under the Act itself when parties agree, the provisions of Section 125 CrPC could be invoked as contained in Section 5 of the Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favour of a divorced woman, and the parameters and considerations are the same as those in Section 125 CrPC. It is undoubtedly true that in the case in hand, Section 5 of the Act has not been invoked. Necessarily, therefore, the Magistrate has exercised his jurisdiction under Section 125 CrPC. But, since the Magistrate retains the power of granting maintenance in view of the Constitution Bench decision in Danial Latifi case under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 CrPC, we see no ground to interfere with the orders of the Magistrate granting maintenance in favour of a divorced Muslim woman.”

Referring to the above judgment, the Supreme Court in the case of Shamim Bano v. Asraf Khan, (2014) 12 SCC 636, observed that the aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. Supreme Court noted that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench (in the above Khatoon Nisa case) opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Muslim Women (Protection of Rights on Divorce) Act, the order did not warrant any interference. The Supreme Court held that thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence.

Similarly, in the case of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the Supreme Court held that:

“The appellant’s petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only.”

Therefore, a divorced Muslim woman is entitled to claim maintenance from her former husband in terms of the above judgments of the Supreme Court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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