International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

Interpretation of Muslim Law for Mahr, Dower and Maintenance

BY: Dr.Pankaj Dwivedi( Associate Professor), HOD, School of Law and Legal Affairs, Noida International University and Annu Bahl ( Research Scholar), Noida International University Introduction to Mahr, Dower daughter or sister in marriage to the

In old pre-Islamic, Arabia, former. Thus neither of the wives when the institution of marriage as we could get a dower. False accusations of know it today was not developed many unchastity were frequently used to 3 forms of sex relationships between deprive the wife of her dower. man and woman were in vogue. Some In the so called Beena were temporary and hardly better than marriage, where the husband visited prostitution. Men, after despoiling their the wife but did not bring her home, wives, often turned them out, the wife was called Sadiqa or female absolutely helpless and without any friend, and a gift given to wife on means, the ancient custom to settle marriage was called, Sadaq, In Islam certain sums for subsistence of the wife Sadaq simply means a dower and is in the event she was turned out was synonymous with Mahr (sale price). often disregarded, as there was no But originally the two words (Sadaq organized system of law.1 and Mahr) were quite distinct. Sadaq was a gift to the wife in the Beena Sometime the guardian of the form of marriage and mahr was gift or bride used to take the dower himself; compensation to the parents of the but it is not certain whether it was a wife in the baal form of marriage.4 mere violation of the usage that the Mahr belongs to the marriage of bride should take the dower, or domination, which is known as the whether it shows that dower was baal marriage, where the wife‟s originally the price paid for the bride parents (guardian) part with her and to her parents.2 have to be A device was in vogue under

1 the name of SHIGHAR marriage in Aqil Ahmad, Text Book ofMohammedan Law, p. 149 (2006) which a man would give his daughter 2 Syed Khalid Rashid, Muslim law, p. 88 (2009), revised by Prof. V. P. Bharatiya or sister in marriage to another in 3 Aqil Ahmad, Mohammedan Law, p. 149 (2006). 4 consideration of the latter giving his Ameer Ali, Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3065 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

Mohammedan Law, Vol. II p. (Mu‟ajjal), or deferred {Mu wajjal). 432-4, Vols. I-II, Calcutta 1912, 1929, new addition Concept of Dower (Mahr) by Tahir Mahmood (1985). The concept of mahr in Islam 5 compensated. Promulgation of Islam has unfortunately been much gave a new form of nikah to marriage, misunderstood and is sometime abolished this ancient custom and misinterpreted since it is either forbade unjust acts towards the fair understood as a consideration made by sex, as is evident from the Quran”. If the man to the women as bride-price or you separate yourself from your wives, dower, but in reality, is none of these. send them away with generosity: it is A close definition has been forwarded not permitted to you to appropriate the by the Kifayah and Hedayah in the goods you have once given to them”. Fatawa-i- Alamgiri as not the Thus the custom originated in ancient exchange or consideration given by the times with the payment which man to the women, but an effect of the husbands often made to their wives as contract imposed by law means of support in their old age or on the husband as a taken of respect for when turned out by them. Mahr in the its subject, the women. baal form of marriage was also The Privy Council describes it recognized by the Prophet to as an essential incident to the status of ameliorate the position of wife in marriage. Farther the in ayah defines it Islam, and it was combined with as the property which is incumbent on Sadaq, so that it became a settlement a husband, either by reason of its being 6 or a provision for the wife. In Islamic named in the contract of marriage or law Mahr belongs absolutely to the by virtue of the contract itself and it is wife, although historically speaking it known by several names such as muhr, is more akin to bride‟s price than gift sudak, nuhlah and akr.7 or anything else.

Mahr Definition 5 A.A.A. Fyzee, Outlines of Mahr or dower is a sum that Muhammadan Law, p. 105 becomes payable by the husband to the (2008) edited and revised by wife on marriage, either by agreement Tahir Mahmood. between the parties or by operation of law. It may either be prompt

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man to the woman for entering into the „Dower under the Muslim law is a sum contract; but an effect to the contract of money or other property promised imposed by the law on the husband as by the husband to be paid or delivered a token of respect for its subject, the to the wife in consideration of woman.8 marriage, and even where no dower is expressly fixed or mentioned at the According to Wilson, “Dower” marriage ceremony, the law confers is a consideration for the surrender of the right of dower upon the wife‟. person by the wife. It is the technical Anglo-Mohammedan term for its In Saburannessa v. Sabdu equivalent „Mahr‟ in Sheikh, Calcutta High Court has

Arabic. observed that Muslim marriage is like

According to Ameer Ali, a contract of sale in which the wife is “Dower” is a consideration which the property and dower is the price. belongs absolutely to the wife. The above opinions are based

According to Mulla “Dower” is on the argument that marriage is a civil a sum of money or other property contract and dower is a consideration which the wife is entitled to receive for the contract. But it is submitted that from the husband in consideration of the above opinions are erroneous, because even in those cases where no the marriage. The word dower is specified at the „consideration‟ is not used in the sense in which the word is used in the Indian Contract Act. It is not obligation 8 N.B.E. Baillie, Digest of Moohummudan imposed upon the husband as a mark Law, Vol. I, p. 195 (1980). or respect to the wife. 3

Dr. Jung defines “Dower” as the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of a separate contract, as special consideration of Buza, the right of enjoyment itself.

Hon'ble Justice Mahmood has said in Abdul Kadir v. Salima, that Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3067 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

time of marriage, marriage is not void The following points may be noted with respect to the nature of Dower: on that account, but the law requires that some dower (proper dower) 1. Analogy is often drawn between a should be paid to the wife. contract for dower and one for sale. The wife is considered, to be the Abdur Rahim correctly property and the dower her price. observes, “It is not a consideration proceeding from the husband for the Mahmood, J., In Abdul Kadir contract of marriage, but it is an v. Salima, gives the best description of the nature of dower. He observes: obligation imposed by the law on the husband as mark of respect for the wife “Dower, under the Muhammadan Law, as is evident from the fact that the non- is a sum of money or other property specification of dower at the time promised by the husband to be paid or of marriage does not affect the validity delivered to the wife in consideration of marriage”. of the marriage, and even where no dower is expressly fixed or mentioned Nature of Dower at the marriage ceremony effect of Dower in the present from was marriage. To use the language of the introduced by the Prophet Mohammad Hedaya, the payment of dower is and made obligatory by him in the case enjoined by the law merely as a token of every marriage. Dower in Muslim of respect for its object (the woman), law is somewhat similar to the danatio wherefore the mention of it is not propter nuptias in Roman law. The absolutely essential to the important difference, however, is that while under the Roman law it was validity of a marriage; and, for the voluntary, and under the Muslim Law same reason, a marriage is also valid, it is absolutely obligatory. although a man were to engage in the contract on the special condition that Islam insists that dower should be paid there should be no dower”.9 to the wife herself. It sought to make dower into a real settlement in favour of the wife, a provision for the rainy 9 ILR (1886) 8 All 149. day and socially, a check on the 4 capricious exercise by the husband of this almost unlimited power of divorce.

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“Even after the marriage the amount of if there is stipulation on the part of the dower may be increased by the woman before marriage to forego all husband during covertures”.10 her right to dower, or even if she

agrees to marry without any dower, the 2. It is regarded by some eminent authorities as a consideration for stipulation or agreement will be conjugal intercourse. In a case, Smt. invalid.The reason of its importance Nasra Begum v. Rizwan Ali,89 lies in the protection that it imparts to Allahabad High Court expressed the the wife against the arbitrary exercise view that the right to claim prompts of the power of divorce by the dower proceeds cohabitation. husband. In Muslim Law, the husband can divorce his wife at his whim and 3. Dower is an essential incident and so the object of dower is to check upon fundamental feature of marriage with the capricious exercise of the husband the result that even if no dower is fixed of his power to terminate the marriage the wife is entitled to some dower from at will. It not only protects from his the husband. The marriage is valid unbridled power to divorce but also even though no mention of dower from his extravagance in having more made by the contracting party. than one wife. A stipulation to charge The amount fixed for Mahr is a huge dower on the occasion of his usually a mutually agreed between the another marriage is enough to deter parties and if the parties are competent him from enjoying the luxury of to marry, they may fix their own Mahr having two, three or four wives. at the time of contracting their In Abdul Kadir v. Salima,11 marriage contract. At any event it is Mahmood, J., has observed: enforceable in law. The marriage contract is easily Importance of Dower dissoluble, and the freedom of divorce Fatwai-i-Quazi Khan says, and the rule of polygamy place the “Mahr is so necessary to marriage that power in the hands of the husband if it were not mentioned at the time of which the law-giver intended to the marriage, or in the contract, the law restrain by rendering the rules as to will presume it by virtue of the payment of dower stringent on the contract itself‟. 10 Syed Khalid Rashid, Muslim Law, p. 89 It is essentially an incident of (2009). 11ILR (1886) 8 All 149 the Muslim law of Marriage that even 5

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husband. That is why the right of the gold or silver so that the rights of wife to her dower is a fundamental women are fully protected in the event feature of the marriage contract; it has of fall in the values of currencies.13 a pivotal place in the scheme of the Since Mahr is an integral part domestic relation affecting the mutual of Muslim marriage, it may be fixed by rights of the spouses at more than one an agreement between the parties; in point. case it is not done, it will be

The question with regard to determined by operation of law. dower does not arise in case of With the exception of the marriages solemnized under the Hanafis and the Malikis, among whom Special Marriage Act, 1954. But the a minimum amount (though not right to Mahr fixed in a marriage first maximum) of dower is laid down, contracted under Muslim Law will not Muslim law givers do not fix any be forfeited merely by the fact of minimum or maximum amount of registration of the marriage under the Malikis at three dirhams. In India, the Special Marriage Act, 1954. value of ten dirhams is between Rs. 3-

4. Thus, the minimum of mahr in both The Object of Dower The object of dower is three- schools is nominal. The peculiar fold: feature of Muslim law of mahr is that (i) to impose an obligation on the no maximum amount of mahr is husband as a mark of respect of the wife; prescribed, and, therefore, a husband is

free to fix any amount of mahr, even (ii) to place a check on the capricious use of divorce on the part of though it is beyond his means or ability husband; and to pay or earn. Whenever a claim is (iii) to provide for her subsistence made to enforce the payment of the after the dissolution of her marriage, so amount of the dower, the Court that she may not become helpless after ordinarily awards the entire amount the death of the husband or termination stipulated in the contract. of marriage by divorce.12

Fixation of Mahr in Indian laws

The Indian Ulama 12 Aqil Ahmad, supra note at 153 recommended in a seminar that Mahr 13Social Issues Decision of Indian Ulam, p. 14.

(dower) should be fixed in terms of 6

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Sometimes, with a view to of mahr. However, under the Fatimid Shiah law it should not be less than ten preventing the husband from divorcing dirhams," the regular mahr among the his wife, the amount of mahr is Sulaymani Bohras is Rs. 40 at present. deliberately fixed very high. The The Daudi Bohras have no fixed husband cannot plead in equity and say amount, but the usual mahr is Rs. 51 Rs. 110 or more”. by way of his defence, that the amount is too excessive and beyond his means. The amount of mahr may In only two states, Oudh (now part of exceed the legal minimum, but all the Uttar Pradesh) and Jammu and schools of law strongly recommend moderation, and some are of the Kashmir, it has been laid down opinion that mahr should not exceed statutorily that the Court may not the amount which the Prophet award the amount of dower as bestowed on his wives known as mahr stipulated in the contract if it finds it ul-Sunnah. However, where the husband has the capacity he may too excessive, and may award an stipulate as much as he can afford amount which it considers to be according to Al-Nahr “so much of gold reasonable with reference to the means as an ox hide can contain”. Thus, of the husband and the status of the “there seems to be no legal limit for dower; and dowers of very large wife at the time of payment of mahr. It amounts have been sustained by courts is surprising that under either statute, of justice in India”. the Court has no power of raising the Mahr need not be a sum of amount of mahr if it finds it to be too money; any type of property can be low, considering the means of the conferred by way of mahr. Anything, husband and the status of the which falls within the meaning of mal, and has value, may, according to the wife.14Fazee states; “The amount of Hanafi law, form the subject of dower. mahr may either be fixed or not; if is Even instructions in the Koran may be fixed it cannot be a sum less than the subject matter of Mahr. It may, on minimum laid down by the law as the other hand, be immovable property, follows:15 land or house. If immovable property (a) Hanafi law : 10 dirhams of the value of Rs. 100 or more is (b) Maliki law : 3 dirhams

(c) Shafei law : no fixed minimum 14 (d) Shia law : no fixed minimum Paras Diwan, Muslim Law in Modern India,p. 70 (2008). Under Ithna Ashari and Imamia 15 A. A. A. Fyzee, Outlines of Muhammadan Law, Ismaili laws there is no legal minimum p. 107 (2008). Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3071 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

given by way of dower, and the wife is (i) Kinds of Dower in Indian Laws put into possession, she cannot be We have seen that dower is payable whether the sum has dispossessed even if there is no been fixed or not. registered deed, Section 54A, Transfer Ali said: “There can be no of Property Act, 1872, will apply. marriage without maher”.

Usually a written deed of mahr Thus, dower may, first of all, be either known as mahr nama is executed; but specified or not specified. In the latter no deed is necessary. case it is called Mahr al- mithl, proper

It has been earlier stated that dower, or to be strictly literal „the when dower is fixed by a contract dower of the like‟. If the dower has between parties, it is known as been specified, then the question may specified dower; when dower arises by be whether it is prompt (mu operation of law, it is known as proper ’ajjal) or deferred (Muwajjal). dower. Thus we have two kinds of dower in Islam- Increase or Decrease of Dower (a) Specified dower (al-mahr al The husband may at any time musamma), and after marriage increase the dower. (b) Unspecified dower or proper dower Likewise, the wife may remit the (mahr al- mithl). dower wholly or partially. Specified dower may again be divided into A Muslim girl who has attained (c) prompt (mu’ajjal) and (d) deferred puberty is competent to relinquish her (muwajjal). Mahr although she may not have In (a) and (b) the question attained majority (18 years within the before the court is the amount Indian Majority Act). The remission payable; in (c) and made by the wife, should be with free (d) the question is the time when payable has to be made. consent. The remission of the Mahr by a wife is called Hibe-e-Mahr. Regarded as a consideration for the marriage, it is, in theory payable In a case where the wife was before consummation but the law subject to mental distress, on account allows its division into two parts, one of her husband‟s death the remission of which is called of dower, was considered as against „prompt‟ payable before the wife can her consent and not binding on her. be called upon to enter the conjugal

domicile or demanded by

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said to be 500 dirhams; Maher- i- the wife the other „deferred‟, payable on the dissolution of the contract by Mithl, or customary dower; and the death of either of the parties or by Maher-i-Musama or the specified dower. Under Shiah Ithna Ashari law divorce. But the dower ranks as a debt and the widow is entitled along with as practiced in India when no mahr has other creditors of her deceased been stipulated at the time of marriage, and is to fixed by the operation of the husband, to have it satisfied on his law, the amount is Maher- i- Sunnat or death out of his estate”. If the property 500 dirhams mahr, in the absence of of her deceased husband is in her specification, in not to exceed this possession, she is entitled (as against amount, Ismailli law follows a similar other heirs of her husband and as rule. There also exists an exceptional against other creditors or recover that clause in the Shiah property after they have paid up her debt. Dower-debt is not a charge and Ithna Ashari law in India that a woman “who is adult (baligh) and not of a widow cannot prevent another creditor weak or facile disposition can, at the or of her husband from recovering his time of marriage, agree that there will debt from his estate. Dower-debt is an be no Maher. An unsecured debt ranking equally with Ithna Ashari may also, at the time of other debts. marriage, reserve (with the consent of In the other word, “Prompt the wife) an option to cancel the dower is payable on demand, and maher. deferred dower is payable on the Under Fatimid Shiah law a dissolution of marriage by death or woman may under certain divorce. The prompt portion of the circumstance give up her maher, dower may be realized by the wife at according to all other Schools mahr any time before or after forms an inseparable ingredient of the consummation, but the deferred dower marriage contract and never be could not be so demanded. cancelled by the virtue of law.

The Ithna Ashari Shias divide So, the dower may be classified mahr into three categories: in Sunni Schools into:

one, Mahr i- Sunnat or the (a) Specified Dower (Mahr-i- amounts of mahr the Prophet Mussamma) paid his wives, (1) Prompt dower; and

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(2) Deferred dower. the wife, though it may leave nothing

(b) Unspecified (Proper) dower (Mahr- to his heirs after payment of the i-Misl) amount. But he cannot in any case (a) Specified Dower settle less than ten dirhams (the money

Usually the maker is fixed at the time value of 10 dirhams is between Rs. 3 of marriage and the qazi performing and 4) according to Hanafi law and 3 the ceremony enters the amount in the dirhams according to Muslim law. register; or else there may be a regular Shia law does not fix any contract called kabin-nama with minimum amount for dower. For those numerous conditions. The sum may be Muslim husbands who are very poor fixed either at the time of marriage or and not in a position to pay even 10 latter, and a father‟s contract on behalf dirhams to the wife as dower, the of a minor son is binding on the minor. Prophet

If the amount of dower is stated has directed them to teach Quran to the in the marriage contract, it is called the wife in lieu of dower. At present there specified dower. Dower may be settled is no limit to the maximum amount of by the parties to the marriage either dower. The minimum has now become obsolete. before the marriage or at the time of the marriage or even after the As already stated, specified dower is again subdivided into: marriage. If a marriage of a minor or (a) Prompt Dower (muajjal mahr) lunatic boy is contracted by a guardian, (b) Deferred Dower (muwajjal mahr). such guardian can fix the amount of (1) Prompt Dower dower. Dower fixed by the guardian is It is payable immediately after binding on the minor boy and he marriage on demand. cannot on attaining the age of puberty According to Ameer Ali a wife can take the plea that he was not party to it. refuse to enter into conjugal domicile Even after the marriage of such minor of husband until the payment of the or lunatic boy, the guardian can settle prompt dower. the amount of dower, provided that at The following point must be noted the time of settlement of dower, the regarding prompt dower: boy is still minor or lunatic.

The husband may settle any 10 amount he likes by way of dower upon

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1. Prompt dower is payable arises only after the dower has been immediately on the marriage taking paid. place and it must be paid on demand, 4. As the prompt dower is payable on unless delay is stipulated for agreed. It demand, limitation begins to run on can be realized any time before or after demand and refusal. The period of the marriage. The wife may refuse limitation for this purpose is three years. herself to her husband, until the Prompt If during the continuance of marriage, Dower is paid. If the wife is minor, her the wife does not make any demand, the guardian may refuse to allow her to be limitation begins to run only from the sent to the husband‟s house till the date of the dissolution of marriage by payment of Prompt Dower. In such death or divorce. Although prompt circumstances, the husband is bound to dower, according to Muslim law, is maintain the wife, although she is payable immediately on demand, yet, in residing apart from him. a large majority of cases it is rarely

demanded and is rarely paid; in practice 2. Prompt dower does not become deferred after consummation of Muslim husband generally gives little marriage, and a wife has absolute right though to the question of paying dower to sue for recovery of prompt dower to his wife save when there is domestic even after consummation. After disagreement, or when the wife presses consummation, she cannot resist the for payment upon the conjugal rights of the husband if the husband‟s embarking upon a course of prompt dower has not been paid by him. extravagance and indebtedness without Instead of refusing the decree the suit making any provision for her. Lapse of for restitution of conjugal rights to time since marriage raises no which the husband is entitled, if presumption in favour of the payment marriage is consummated, the Court of dower. may pass a decree conditional on (2) Deferred Dower payment of dower. It is payable on dissolution of marriage either by death or 3. It is only on the payment of prompt divorce. dower that the husband becomes According to Ameer Ali entitled to enforce the conjugal rights generally in India dower is a penal sum unless the marriage is already with the object to the compel husband consummated. The right of restitution Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3075 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

to fulfill marriage contract in its (b) Right to dower as a debt; and entirety. (c) Right to retain her deceased The following points must be husband‟s property. noted regarding deferred dower: Refusal to Cohabit

1. Deferred dower is payable on If the marriage has not been dissolution of marriage by death or consummated, the wife has a right to divorce. But if there is any agreement as refuse to cohabit with her husband so to the payment of deferred dower earlier long as the prompt dower is not paid. In than the dissolution of marriage such an the case of a wife who is a minor or an agreement would be valid and insane, her guardian has right to refuse binding.The wife is not entitled to to send her to her husband‟s house till demand payment of deferred dower payment of prompt dower. During her (unless otherwise stipulated) but the such a stay in her guardian‟s house the husband can treat it as prompt and pay husband is bound to maintain her. or transfer the property in lieu of it. Right to Dower as a Debt

Such a transfer will not be void as a Their Lordships of the Privy fraudulent preference unless actual Council held that “the dower ranks as a insolvency is involved. debt and widow is entitled along with 2. The widow may relinquish her dower other creditors to have it satisfied on the at the time of her husband‟s funeral by the recital of a formula. Such a death of the husband, out of his estate”. relinquishment must be a voluntary If the husband is alive, the wife can act of the widow. recover the dower debt by instituting a 4. The interest of the wife in the suit against him. After the death of the deferred dower is a vested and not a husband, dower debt remaining unpaid, contingent one. It is not liable to be the widow can enforce her claim for the displaced by the happening of any event, not even on her own death and as dower debt by filing a suit against his such her heirs can claim the money if heirs. The heirs of the deceased husband she dies. are however, not personally liable for Wife’s Rights and Remedies on Non- the dower debt. They are liable to the Payment of Dower extent to which and in the proportion in Muslim Law confers upon a which they inherit the property of the wife (or widow) the following three deceased husband. If the widow is in rights to compel payment of her dower: procession of her husband‟s property (a) Refusal to cohabit; Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3076 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

under a claim for her dower, the other heirs of her husband are severally entitled to recover their respective share upon payment of a quota of the dower debt proportionate to those shares.

A Mohammdan dies leaving a widow, a son and two daughters. The widow is entitled to a dower debt of Rs. 3200; the widow‟s share is the estate is 1/8 and she is liable to contribute 1/8 of Rs. 3200 = Rs. 400. The son‟s share is 7/16 and he is liable to 7/16 of Rs. 3200 = Rs. 1400. The share of each daughter is 7/32 and she is liable to pay 7/32 of Rs. 3200 = Rs. 700 and if the window is in possession to recover her share on payment of Rs. 700. She is not, however, entitled to any charge on her husband‟s property, though such a charge may be created by agreement.145 Even a father‟s contract on behalf of his minor son is binding upon the minor and upon the father if the minor fails to pay.

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Difference Between Sunni and Shia Laws Relating to Dower

Sunni Law Shia Law

A minimum limit of 10 dirhams is No minimum limit is prescribed. prescribed for specified dower.

There is no limit to proper dower. Proper dower cannot exceed 500 dirhams.

There is no maximum limit for specific Fixing of dower exceeding 500 dirhams is considered abominable though not dower. illegal.

If the marriage is dissolved by death and In such case no dower would be due if the dower has not been specified, or it is marriage was not consummated. agreed that no dower shall be payable, proper dower would be due whether the marriage was consummated or not.

An agreement that no dower shall be due Such agreement by sane and adult wife is is void. valid.

In the absence of an agreement only a The whole dower is presumed to be reasonable part of the dower is presumed prompt. to be prompt.

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The Muslim Women (d) all the properties given to (Protection of Rights on Divorce) Act, her before or at the time of marriage or after the 1986 , has provision on Mahr as follows. marriage by her relatives or friends or the husband or Section 3. Mahr or other any relatives of the

properties of Muslim husband or his friends. woman to be given to her at (2) Where a reasonable and fair the time of divorce.— provision and maintenance (1) Notwithstanding anything or the amount of mahr or contained in any other law dower due has not been for the time being in force, made or paid or the a divorced woman shall be entitled to— properties referred to in clause (d) of sub-section (1) (a) a reasonable and fair provision and maintenance have not been delivered to a to be made and paid to her divorced woman on her within the iddat period by divorce, she or any one her former husband; duly authorised by her may,

on her behalf, make an (b) where she herself maintains the children born to her application to a Magistrate before or after her divorce, for an order for payment of a reasonable and fair such provision and provision and maintenance maintenance, mahr or to be made and paid by her dower or the delivery of former husband for a period properties, as the case may of two years from the be.

respective dates of birth of (3) Where an application has such children; been made under sub- section (2) by a divorced (c) an amount equal to the sum woman, the Magistrate of mahr or dower agreed to may, if he is satisfied that— be paid to her at the time of (a) her husband having her marriage or at any time sufficient means, has failed thereafter according to or neglected to make or pay Muslim law; and her within the iddat period Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3079 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

a reasonable and fair of the application within provision and maintenance the said period, he may, for for her and the children; or reasons to be recorded by

him, dispose of the (b) the amount equal to the sum of mahr or dower has not application after the said been paid or that the period.

properties referred to in (4) If any person against whom clause (d) of sub-section (1) an order has been made have not been delivered to under sub-section (3) fails her. make an order, within without sufficient cause to one month of the date of comply with the order, the the filing of the application, Magistrate may issue a directing her former warrant for levying the husband to pay such amount of maintenance or reasonable mahr or dower due in the and fair provision and manner provided for maintenance to the levying fines under the divorced woman as he may Code of Criminal determine as fit and proper Procedure, 1973 (2 of having regard to the needs 1974) and may sentence of the divorced woman, the such person, for the whole standard of life enjoyed by or part of any amount her during her marriage and remaining unpaid after the the means of her former execution of the warrant, to husband or, as the case may imprisonment for a term be, for the payment of such which may extend to one mahr or dower or the year or until payment if delivery of such properties sooner made, subject to referred to in clause such person being heard in (d) of sub-section (1) to the defence and the said divorced woman: Provided sentence being imposed that if the Magistrate finds according to the provisions it impracticable to dispose of the said Code. Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3080 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

the proportions in which

The Muslim Women they would inherit her (Protection of Rights on property and at such Divorce) Act, 1986 , has periods as he may specify provision on maintenance as follows. in his order: 4. Order for payment of maintenance.— Provided that where such

divorced woman has (1) Notwithstanding anything children, the Magistrate contained in the foregoing provisions of this Act or in shall order only such any other law for the time children to pay being in force, where the maintenance to her, and in Magistrate is satisfied that a the event of any such divorced woman has not re- children being unable to married and is not able to pay such maintenance, the maintain herself after the Magistrate shall order the iddat period, he may make parents of such divorced an order directing such of woman to pay maintenance her relatives as would be to her: Provided further that entitled to inherit her if any of the parents is property on her death unable to pay his or her according to Muslim law to share of the maintenance ordered by the Magistrate pay such reasonable and fair maintenance to her as on the ground of his or her he may determine fit and not having the means to pay proper, having regard to the the same, the Magistrate may, on proof of such needs of the divorced woman, the standard of life inability being furnished to enjoyed by her during her him, order that the share of marriage and the means of such relatives in the such relatives and such maintenance ordered by maintenance shall be him be paid by such of the payable by such relatives in other relatives as may

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appear to the Magistrate to to pay such maintenance as have the means of paying determined by him under the same in such sub-section (1) or, as the proportions as the case may be, to pay the Magistrate may think fit to shares of such of the order. relatives who are unable to

pay, at such periods as he (2) Where a divorced woman is unable to maintain herself may specify in his order.

and she has no relative as Concept of Maintenance and General Meaning of the Term:- mentioned in sub-section (1) or such relatives or any The term maintenance includes all necessities for subsistence of life. one of them have not The general meaning of the term can enough means to pay the be well understood by referring to the maintenance ordered by the definition given under Hindu law, Magistrate or the other since muslim law doesn‟t per se define relatives have not the the term, and hence, this reference means to pay the shares of shall be useful.16 The term as defined those relatives whose in Hindu Law means:- shares have been ordered

by the Magistrate to be paid by such other relatives

under the second proviso to 16 Aioshwarya Anand, “Maintenance for sub-section (1), the Muslim Women in India” International Journal of Advanced Research Magistrate may, by order (2016), Volume 4, Issue 5, 1503-1510

direct the State Wakf Board established under section 9 “in all cases, provisions for food, clothing, residence, education and of the Wakf Act, 1954 (29 medical attendance and treatment; in of 1954), or under any the case of an unmarried daughter, also other law for the time being the reasonable expenses of and in force in a State, incident to her marriage.”17 functioning in the area in As indicated by Halsburys law which the woman resides, of England, maintenance is "the name

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given to the week by week or regularly fact that she has means to maintain scheduled installments which may be herself. In addition to this, the marriage requested on a declaration of contract may stipulate payment of separation, or nullity to be made for special allowances by the husband, and the upkeep and backing of the wife in presence of these, it becomes the amid the joint lives of the life partners. obligation of the husband to pay these Hence, it is a comparative procurement to the wife. Such allowances are called for their profit, which may be made in kharch-e-pandan,guzara, mewa khore, processes of judicial separation, etc. nullity, divorce and restitution of This can be claimed as a right. However, this is subject to a few conjugal rights” exceptions. These are:-

1. A wife cannot claim Meaning of the Term under Muslim maintenance if she is Law:- disobedient. Under traditional Sharia law, 2. A wife cannot claim the law regarding maintenance was a maintenance if she does not little unclear, since there was no allow free access to demarcation between a legal obligation husband unconditionally or a moral or ethical duty under 3. A wife who deserts her Muslim law, hence making it difficult husband is not entitled to to ascertain as to what is a person maintenance. legally bound to do and what is a mere 17 moral duty. Under Quranic Law, a Section 3 (c) Hindu Adoption & Maintenance Act, 1986 husband is obliged to provide 18Khan Ephroz , “ Women and Law : Muslim Personal Law Perspective”( Rawat Publications , maintenance to his wife and family, 2003) 302 19 Prof. Ashok Wadje, “ Maintenance Right of and the term signifies the amount he is Muslim Wife: Perspective, Issues & Need for Reformation” National Law University, liable to pay for the same.18 Jodhpur Law Journal

The term used for maintenance The husband‟s obligation to under Muslim Law is called nafaqa and maintain his wife is a personal liability, it comprehends food, raiment and thus after his death, the wife is not lodging, though in common parlance it entitled to be maintained by his relatives is limited to the first.19 nor out of his property.

The wife is entitled to We have established that maintenance from husband, despite the maintenance is the right of the wife.

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The following circumstance give rise where the same was being misused by to such a right. These are:- the husbands.

1. Marriage. Looking at this loophole, an 2. Divorce. amendment was made in 1973, 3. Pre Nupital Agreement. wherein under section 125, a divorcee

We may now move a step was entitled to maintenance till the further to list the sources from which time she remarries. Being secular in these rights emanate. There are three nature, this provision applies to all major sources. These are :- women, including Muslim women.

1. Muslim Personal Law. Conflict of Muslim Personal Law with 2. Section 125, CrPC. section 125 of CrPC:-

3. The Muslim Women Under Muslim Personal Law, a (Protection of Rights on Divorce) Act, 1986. woman is entitled to maintenance only till the end of the Iddat period. Iddat is The present work shall focus on the period when co-habitation of the Maintenance of Muslim Women Post parties end, on the expiry of iddat the Divorce. The major research area is the spouses will stand divorced. The conflict between CrPC and Muslim period of iddat consists of three Personal law, and the position as menstrual cycles or three lunar months settled by the famous Shah Bano Case. , in case of pregnant women , the iddat

Maintenance of Divorcees under period would extend up to the time of Muslim Law: 20 Maintenance under, CrPC- Before and delivery. After 1973:-

Initially, it was provided in the 20 Khan Ephroz , “ Women and Law : Muslim CrPC(earlier under section 488) that Personal Law Perspective” Rawat Publications , 2003 only a wife is entitled to maintenance by husband. It was claimed by the 1 8 husbands that once dissolution takes place, a woman ceases to be a wife and hence is not longer entitled to maintenance. However, in Muslim law, taking a divorce is relatively easier and hence, it led to situations

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Hence, we can see a direct spouse from the commitment in light conflict, since CrPC does not recognize of the fact that each lady independent iddat period and maintenance goes of her religion is entitled to beyond the same. Secondly, in Muslim maintenance. The divorced wife has Law, polygamy is permitted, and under this right except from when the section 125, marriage to another aggregate payment stipulated by woman becomes aground for claiming custom is pretty much sufficient to maintenance. In Mohammed Haneefa substitute the maintenance .Thus the v. Mariam Bi,21 the Court stated that spirit behind Section 127(3)(b) is that a in case of a clash between personal law wife can't profit from both , unless the and CrPC, the former shall prevail. whole sum paid under the customary This position was seconded by the law is deficient. An extra requirement Supreme Court in SairaBano v A.M was included by the Apex court in 22 Abdul Gafoor. Fuzlunbi v. K Khader Vali.24

This caused a lot of dilemma The instalment of the sum in the legislature. To resolve this focused around Muslim law must be dilemma, Section 127(3) was added pretty much identical to the month by under which that if a divorced woman month maintenance to the divorcee, receives an amount due to customary required till her remarriage or demise, or personal laws of the community, the with a specific end goal to substitute magistrate can cancel any order for the maintenance recompense maintenance in her favour. commitment. The Supreme Court Judicial Decisions interpreting the expressed in Zohara Khatoon vs Mohd. Scope of Section 127:- 25 However, since the judiciary Ibrahim that the expression "wife" in favoured the right of women to claim S.125 and S.127of CrPC incorporates maintenance, the conflict continued. It Muslim ladies who get separated by was held in Bai Tahira vs Ali Hussain method for Talaq or under the Dissolution of Muslim Marriage Fissalli Chothia23 that payment of Act,1939. "illusory sums" focused around the

Muslim personal laws ought to be 21AIR 1969 Mad 414 22 considered to diminish the measure of AIR 1987 SC 1103 231979 AIR SC 362 24 maintenance payable by the spouse, AIR 1980 SC 1730 251981 AIR SC 1243 however that does not acquit the

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It was in this context of growing Indore under section 125 of the CrPC, conflict and dissatisfaction that the and claiming maintenance of Rs 500 famous Shah Bano Case surfaced and per month, she was awarded a went onto become the most landmark maintenance of Rs 25 per month from judgment in this subject matter. the husband.

Mohd Ahmad Khan v. Shah Bano Aggrieved by the lowamount, Begum or the Shah Bano Case:-26 she filed a revision petition Facts of the Case briefly stated:- before

Shah Bano Begum married the Madhya Pradesh High Court, which entitled her to a maintenance of Mohammad Ahmed Khan in 1932. Rs 179.20 per month. The husband They produced three sons and two appealed against this order before the daughters. Mr. Khan took another Supreme Court, his main contention wife, legally according to Islamic law, being that since the dissolution had with whom he produced additional taken place, she ceased to be his wife children. The entire extended family and under Muslim law, he was not shared a home, from which Mr. Khan obliged to pay her maintenance. Also, expelled Shah Bano in 1975, forcing since he had paid the dower amount her to take refuge with one of her adult during the Iddat period, the wife was sons. Shah Bano received maintenance not entitled to any maintenance. from her husband for two years, after Muslim bodies like All India Muslim which he claimed he had fulfilled his Personal Law Board and Jamiat obligations under Islamic law because Ulema-e-Hind joined the case as according to the fundamentalist interveners. interpretation of the Shariat, “the Muslim husband enjoys the privilege The case was decided by a a five judge bench composed of chief justice of being able to discard his wife Chandrachud, Jangnath Misra, D A whenever he chooses to do so.” Desai,O. Chinnappa Reddy, and E S

Venkataramiah. In the present case, a 62 year old woman was divorced and subsequently denied maintenance. She had not remarried. On moving the 26 AIR 1985 SC 945 court of the Judicial Magistrate at

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Judgment of the Court:- divorced wife is able to

The Supreme Court dismissed maintain herself, the husband’s the appeal and upheld the decision of liability ceases with the the High Court. The Supreme Court expiration of the period of held that if the wife is equipped to Iddat, but if she is unable to maintain herself then the spouse's maintain herself after the period commitments would stop post iddat. of Iddat, she is entitled to have However in the event that she can't do recourse to Section 125 of Cr. so, a recourse under section 125 is P.C.” available and, hence, the appellant had Hence, the Supreme Court to pay. The Supreme Court stated that settled the position of law that in case a if the Holy Quran is correctly Muslim woman is divorced, incapable interpreted, then it can be inferred that of maintaining herself and has not there is not conflict between section remarried, then she shall be entitled to 125 of the CrPC and Muslim Personal maintenance under section 125 of the Law at all, since even under Islamic CrPC.

Law, the husband is obliged to pay Reaction to the Judgment:- maintenance to the divorced wife. The The judgment had a lot of Supreme Court explained this political repercussions and had to face judgment by saying that, even if there a lot of criticism from the orthodox is a conflict, section 125 of CrPC is a Muslim Community. Different Civil secular law, and hence, applies to all Code altogether for Muslims was women, irrespective of their religion. It demanded and caused a lot of controversy and heated debates. further stated that CrPC shall prevail over Muslim Personal Law in case of a The main protestors were conflict. The court held:- Obaidullah Khan Azmi and Syed kazi. They had formed an organization “It would be incorrect & in1973 known as the All India Muslim unjust to extend the rule of Personal Law Board devoted to maintenance under Muslim upholding what they saw as Muslim Law to the cases in which the Personal Law, and thorough this divorced wife is unable to organization, they voiced their maintain herself, so if the opinions against the judgment.

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Developments Post Shah Bano Case:- ladies of different beliefs had recourse

The Rajeev Gandhi to under CrPC. Minority Rights Group government, coming under preassure International, an NGO based in the from Islamist groups decided to nullify U.K., denounced the law, commenting the judgment, and in a effort to do the that it “highlighted the disjunction same, it passed The Muslim Women between constitutional law premised (Protection Of Rights On Divorce) Act, on the principle of sexual equality and 1986. religious

This act became one of the laws which discriminate on the basis of most controversial legislations enacted. this very category.”

The relevant provisions of this act are The Constitutional validity of sections 3(1)(a) and 4(1), which stated the Act was challenged on the ground that the former husband must provide of being violative of Article 14, 15 and “a reasonable and fair provision” and 21. The basic question raised by right maintenance within the period of iddat activists was the necessity of enacting and, that in case she is unable to an Act, which completely segregates a maintain herself after the period of portion of the population by having a iddat , she can claim maintenance from special enactment despite a secular remedy being available. her relatives and if they cannot pay , then she can claim from the Wakf The Act was also criticised for being arbitrary for two main Board as per S.4(2), respectively. It reasons. doesn't characterize a maximum limit “Firstly, the use of the word to the maintenance. It expresses that within implied that there was no women may look for fair and provision in the Act which could entitle reasonable remuneration amid the a woman to maintenance post iddat iddat, and that any kids borne of the period. Secondly, the Act diminished the marriage are eligible for a further scope of Section 125 of the CrPC, since, maintenance. by virtue of this Act, the Muslim men were at the option of making the said Reaction to the Act and Controversies surrounding the same:- section of CrPC inapplicable to them.”

The Act was seen as oppressive A state of confusion was as it denied divorce Muslim ladies the prevalent among the judiciary, since on right to fundamental support which the face of it, the Act seemed to be in

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fovour of Muslim women, because of Daniel Latifi v Union of India:- the use of words like fair, reasonable, In this case, a writ was filed provision etc. However, the act didn‟t under Article 32 challenging the provide for any circumstance in which constitutional validity of the Act. The the maintenance could exceed the iddat case was heard by a bench consisting period. The controversy was on its of Mr. G.B. Pattanaik, Mr. S. Rajendra peak between Gujarat and Andhra Babu, Mr. D.P. Mohapatra, Mr. High Courts in the cases of Arab Bail Doraiswamy Raju and Mr. Shivaraj V. and Fathimunnissa Begum . Patil. In this case the constitutional Hence, a situation of ambiguity validity of the Act was upheld and an prevailed, and the court started interpretation of the provisions of the interpreting the Act, as shall be Act was provided. The Court looked discussed in the next section. into the Preamble, Statement of Position Post Enactment of The Objectives and Reasons of the Act. Muslim Women (Protection Of Rights On Divorce) Act,1986- Daniel Latifi v. Huge reliance was placed on the Union of India27:- judgment in the Shah Bano case as

As noted in the previous well. The court concluded that, one, section, the Act had created a lot of the Act does not violate Articles 14, 15 ambiguity, and the judiciary started and 21 and hence, is not ultra vires. interpreting the Act. The Andhra The court stated that “the legislature Pradesh High Court took a strict view does not want to enact unconstitutional saying that the use of the word with laws.” signifies that in no case can the The court went on to interpret maintenance exceed the iddat the Act, and the Supreme Court stated period.On interpreting this, the Gujarat “that a construction that results in High Court, relying on the words fair making an Act ultra vires has to be and reasonable, awarded a lump sum discarded and one that upholds the validity of the Act preferred” payment to the divorced wife as maintenance. The position was finally The court made the following interpretations. settled by another landmark judgment Firstly, interpreting the meaning in 2001, called Daniel Latifi v. Union of the term “within” used under section of India. 3(1)(a) of the Act read with the terms

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terms fair and reasonable, the court on or before the expiration of the iddat arrived at the conclusion that the period, the husband is bound to make maintenance, being fair and reasonable, and pay a maintenance to the wife and should exceed the iddat period but must if he fails to do so then the wife is be made within the iddat period. Such entitled torecover it by filling an maintenance made during iddat period application before the Magistrate as should be for her entire future, that is the provided in Section 3(3) but nowhere time after the expiration of iddat period the Parliament has provided that well. The liability of the husband, reasonable and fair provision and therefore, is not limited to the iddat maintenance is limited only for the period. Therefore, this Act is not in iddat period and not beyond it. It contravention of section 125 of CrPC. would extend to the whole life of the The court stated the following which divorced wife unless she gets married comprehensively explains the for a second time.” position:- The above clarifies the position “the word 'provision' indicates of law as settled by the case, quite that something is provided in advance comprehensively. for meeting some needs. In other It further stated that if a woman words, at the time of divorce the doesn‟t remarry she has the recourse Muslim husband is required to under section 4 of the Act against her contemplate the future needs and make relatives in proportion of the properties preparatory arrangements in advance they shall inherit after her death. If the for meeting those needs. Reasonable relatives are not in a position to the, and fair provision may include the judicial body can order the WAKF provision for her residence, her food, Board to pay for the maintenance of her cloths, and other articles. The the woman. expression "within" should be read as Effects of Daniel Latifi Judgment:-

"during" or "for" and this cannot Daniel Latifi judgment bedone because words cannot be basically revived the principles settled construed contrary to their meaning as in Shah Bano case that, the husband‟s the word "within" would mean "on or liability to maintain his wife doesn‟t before"," not beyond" and, therefore, it end with the iddat period. was held that the Act would mean that

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However, it explained this Divorce) Act,1986. This was once principle, not as contravening the Act again reiterated in the recent which was enacted as a result of the judgement in Shabana Bano v. Imran Shah Bano case, as a commentary on Khan29 that after the expiry of iddat, a that Act. Also, the Act is consistent with divorced Muslim woman can seek section 125 of the CrPC and hence, there maintenance under S.125CrPc as long is no scope for conflict. Hence, the as she doesn‟t remarry. Hence, the position of law is that, the provisions of position as laid down in the Daniel the Act basically emanate from principles set forth in the Shah Bano Latifi case is the settled position and case. The same has not been changed till has not undergone any change. now, and continues to govern matters Conclusion:- related to maintenance of Muslim When communal identity is women after dissolution of marriage. defined by religious traditions, social The principle has been seconded by the transformation that affects religion is Supreme Court once again in Iqbal Bano seen as a threat to that identity, and

V/s. State of U.P28 . In the case the thus evokes an emotional response. Rather than remaining a question of court reiterated the position that Shah Bano‟s demand for maintenance, divorced women are entitled for the case became a battle to protect the maintenance beyond the Iddat period Muslim identity from what and stated that provisions of the Act do fundamentalists considered “the not contravene Article 14, 15 & 21 of Hindu‟s homogenizing influence.” In the Indian Constitution. The court addition to the broader argument further observed that “right under between right-wing Hindus and Section 125 of Cr. P.C. extinguishes Muslim fundamentalists, the Shah only when she receives “fair or Bano case wrought divisions within reasonable” settlement u/Sec. 3 of the the Muslim community. Women‟s Muslim Women Act. The wife will be groups like the NIWF (National Indian entitled to receive maintenance u/Sec. Women‟s Federation) and AIDWA 125 ofCr.P.C. until the husband fulfills (All India Democratic Women‟s his obligation u/Sec. 3 of Muslim Association) spoke out in favor of the Women (Protection of Rights on Available online: https://edupediapublications.org/journals/index.php/IJR/ P a g e | 3091 International Journal of Research p-I SSN: 2348-6848 e-I SSN: 2348-795X Available at Volume 04 Issue 0 2 https://edupediapublications.org/journals Februa ry 2017

judgment as a progressive step toward Personal Law, and stated that if the equality for Muslim women. divorced woman does not have the means to maintain herself, the it is the

Shah Bano was not the first obligation of the husband to maintain woman to go to the courts and demand her for her entire lifetime, and hence, maintenance based upon the CrPC. well beyond the iddat period. The Religion became a weapon both judgment caused a lot of unrest among exploitative and divisive used to traditional Islamic groups, which saw dismantle India‟s democracy. this as an attack on their personal law.

Coming under preassure, the Rajeev It could be seen that under Gandhi led government enacted the Muslim law, maintenance post-divorce Muslim Women (Protection of Rights has been a controversial subject matter. on Divorce) Act, 1986. This act stated Initially, there were two sources from that the husband is obliged to provide which the rights to maintenance of a fair and reasonable maintenance within divorced Muslim woman emanate. the iddat period. This led to a lot of These were section 125 of CrPC and the ambiguity and a sense of confusion Muslim Personal Law. There was a prevailed over the interpretation of the conflict between the two since, under terms. This confusion was finally CrPC, the right of a woman to claim resolved by another landmark maintenance was beyond the iddat judgment, Daniel Latifi v. Union of period and under Muslim Personal India. In this case, the Supreme Court Law, the husband was obliged to pay upheld the constitutional validity of the maintenance only during iddat period. Act and stated that the same does not To resolve this, section 127 was contravene Article15,15 and 21 of the inserted in CrPC, but this was Indian Constitution. Interpreting the unsuccessful in resolving the conflict terms, the Court said that the husband and being asubstitute for maintenance. is obliged to provide for maintenance In this context, the famous Shah Bano of the divorced woman even beyond Case was decided, which settled the iddat period, since the term fair and position of law. The case gave reasonable provision implied this. The precedence to CrPC over Muslim term within was construed to mean that

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such a maintenance should be made of the Act and reiterating the position within the iddat period. However, the which was settled in the Shah Bano obligation does not end with the Iddat Case. The position has been seconded period. Therefore, the case is credited by Court in various instances and for serving dual purpose of stands unchanged. maintaining the constitutional validity

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