JAMIA MILLIA ISLAMIA

FACULTY OF LAW

FAMILY LAW-I

MAINTENANCE: PRE & POST SHAH BANO JUDGEMENT

SUBMITTED TO-

PROF. KAHKASHAN Y. DANYAL

SUBMITTED BY-

MOHD KAMRAN ANSARI

B.A.LLB. (Hons.) (REGULAR) IVth Sem.

BATCH- 2020- 2025

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TABLE OF CONTENTS

INTRODUCTION......................................................................................................................2

MAINTENANCE: PRE SHAH BANO JUDGEMENT............................................................3

THE SHAH BANO JUDGEMENT...........................................................................................4

MAINTENANCE: POST SHAH BANO JUDGEMENT.........................................................5

MAINTENANCE UNDER SECTION 125 CrPC.....................................................................6

CONCLUSION..........................................................................................................................7

BIBLIOGRAPHY......................................................................................................................8

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INTRODUCTION

The issue of post-divorce maintenance has always been a topic of great interest to the public
and to the lawyers because it concerns a key financial matter of the Muslim divorcee. In
earlier times these financial matters were mainly the subject of informal family arrangements
and rarely generated case law. Maintenance is called ‘nafaqah’, which literally means that
which a man spends over his family. In law, it means feeding, clothing and lodging. In
common use it signifies food. The Hedaya defines maintenance as all those things which are
necessary to support life. Maintenance may be classified into two groups, (i) maintenance
during the continuation of a marriage and (ii) post-divorce maintenance. 1 On maintenance
during the marriage, the Quran, Chapter IV, Verse 34 states, “men are the protectors and
maintainers of women, because God had given the one more (strength) than the other, and
because they support them from their means”. This verse has been treated as the basis of
Muslim law in this area. The general rule is that a wife is entitled to maintenance, i.e. food,
clothing and lodging from her husband during the subsistence of a valid (sahih) marriage and
during the period of iddat. Wife’s right to get maintenance from her husband during the
subsistence of a valid marriage is absolute. Her right remains unprejudiced even if she has
income or property of her own.

Concerning socio-economic conditions, customs and traditions and individual circumstances

of the spouses the quantum of maintenance and the duration of it have obviously become a
debatable issue. The various schools have developed different criteria to assess the extent of
wife’s entitlements. 12 All schools of Islamic law agree that if both the husband and wife
come from wealthy backgrounds, the level of maintenance should be in accordance with their
standard of living, likewise, if both are from poor backgrounds, the level of maintenance will
reflect this position.

If, however, one party is from a poor background and other is from a wealthy background, the
schools have arrived at slightly different interpretations of the level of the appropriate
maintenance. The Maliki and Hanbali shools adopt the view that the average and medium
level should be maintained in all cases. The Hanafi school adopts the same position when the
husband is wealthy and the wife is poor. When the wife is wealthy and the husband is poor,

1
Nazmi, Dr. Mohammad, Mohammedan Law, 3”’ ed., (Allahabad. Central Law Publication, 2005), L [Durrul
Mukhtar (Dayal’s English Translation)].

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however, the Hanafi school believes that it is unreal to look to an average position. This
school adopts the view that the husband’s condition alone should be the guiding factor.2

MAINTENANCE: PRE SHAH BANO JUDGEMENT

During the British period there was no provision in the Hanafi Code of Muslim law enabling
a married Muslim woman to obtain a decree from the Court dissolving her marriage in case
the husband neglected to maintain her, makes her life miserable by deserting or persistently
maltreating her or certain other circumstances. The absence of such a provision entailed
unspeakable misery to innumerable Muslim women in British India where the Hanafi law
was dominant.

Even though the Courts in British India were given powers before 1939 to apply the law of
one of the schools of Muslim law in a case in which the parties were followers of different
schools, on grounds of justice, equity and good conscience, the courts were reluctant to apply
the more liberal rules of Maliki law to parties following other schools. This led to the passing
of the Dissolution of Muslim Marriages Act of 1939. The new Act was an attempt to reinstate
liberal Muslim provisions which were not contrary to Muslim law. Under section 2(u) of the
Act a wife was entitled to the dissolution of her marriage when her husband has failed to
provide for her maintenance for a period of two years. Further on, it was held by the Courts
that a wife who refuges to return to her husband without sufficient cause is not entitled to
maintenance. This ruling of the Court was mutually contradictory as it was based on the
‘fault’ theory and contrary to the modern ‘breakdown theory’. The view that judicial
dissolution or faskh can be granted irrespective of the wife’s faulty conduct has been
criticized by Islamic scholars.

THE SHAH BANO JUDGEMENT

The Supreme Court in India in the landmark case of Mohd. Ahmed Khan v. Shah Bano
Begum3 allowed life-long post-divorce maintenance for Muslim women divorcees. The basic
facts of this case are as follows:

The husband, a senior advocate by profession, was married to the respondent wife in
1932. His professional income was about Rs. 60,000 per annum. Three sons and two
daughters were born to the marriage, which was never a happy one. The husband took a
2
Latif, Syed Abdul, Thrzumatul Quran, Id ed. Vol.2, (Delhi: Asia Publishing House, 1967).
3
Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945; See also, Jagir Kaur & Anr. v. Jaswant Singh, AIR
1963 SC 1521

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second wife and in 1975 divorced Shah Bano, the first wife and then an old lady. For two
years he paid Shah Bano Begum maintenance of Rs. 200 per month. Then the payment of
maintenance was stopped. She filed a petition for maintenance in April 1978 claiming Rs.
500 per month under section 125 of the Code of Criminal Procedure 1973 in the Court of
Judicial Magistrate. As
the appellant was an advocate by profession and well versed in law, so he
played a trick to nullify the claim of Shah Bano. On November 6, 1978, the appellant
divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for
maintenance was that she had ceased to wife by reason of the divorce made by him, that he
was therefore under no obligation to provide maintenance for her, that he had already paid
maintenance to her at the rate of Rs. 200 per month for about 2 years and that he had
deposited a sum of Rs. 3000 in the court by way of dower and maintenance during the period
of iddat. The Magistrate awarded the respondent Rs. 25 per month.

The High Court of Madhya Pradesh eventually awarded the ex-wife maintenance at the rate
of Rs. 179.20 per month and the husband appealed against the said order. A five-judge bench
of the Supreme Court, headed by the Chief Justice, dismissed the husband’s appeal and
confirmed the decision of the High Court. Justice Chandrachud, the then Chief Justice went
on to examine the question of whether there was in fact any conflict between the Muslim
personal law and the general law. This is a new element in the case which led to intense
confrontation thereafter partly because there were five Hindu judges interpreting the
principles of Muslim law, in a case that would hit the pockets of many Muslim men.
Chandrachud C.J. stated: “Since the Muslim personal law which limits the husband’s liability
to provide for the maintenance of the divorced wife to the period of iddat, does not
contemplate the situation envisaged by section 125 of the Code of Criminal Procedure 1973 it
would be wrong to hold that the Muslim husband, according to his personal law, is not under
an obligation to provide maintenance beyond the period of iddat, to his divorced wife who is
unable to maintain herself. The true position is that, if the divorced wife is able to maintain
herself, the husband’s liability to provide maintenance for her ceases with the expiration of
the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to
section 125 of the CrPC 1973. So, there is no conflict between the provision of section 125
and those of the Muslim personal law on the question of the Muslim husband’s obligation to
provide maintenance for a divorced wife who is unable to maintain herself.4

4
Tahir Mahmood, The Muslim Law of lndia 1st ed., I (Allahabad: Central Law Agency, 1980)

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These statements were immediately backed by reference to relevant Quranic verses (Chapter
2, Verse 241 & 242) to the effect that for divorced women, maintenance should be provided
on a reasonable scale and that this was a duty on the righteous Muslims.

MAINTENANCE: POST SHAH BANO JUDGEMENT

The decision in the Shah Bano case led to a lot of unrest in the Muslim community. As a
result the Government of India had to bring about an enactment called ‘The Muslim Woman
(Protection of Rights on Divorce) Act, 1986’ by which the said decision prima-facie was set
aside. After the Sha Bano judgement was nullified by the passing of the Muslim Woman
(Protection of Rights on Divorce) Act, 1986, a writ petition was filed in the Supreme Court
challenging the constitutionality of the said Act. The case was Danial Latifi v. Union of
India5. It was contended by the petitioners that the Act was less beneficial than Sections 125-
128 of the CrPC. Further, it unreasonably discriminated against Muslim divorced women and
violated their rights under Article 14, 15 and 21 of the Constitution. Also, it sought to nullify
the SC’s decision in Mohd. Ahmed Khan v. Shah Bano Begum.

However, the SC upheld the constitutional validity of the Act. It held that there is no
discrimination when the state has made a specific provision for a particular community that is
equally or more beneficial than the general law. The Act does not nullify or go against
the ratio decidendi of the Shah Bano but merely codifies it.

The court made the following interpretations. Firstly, interpreting the meaning of the term
“within” used under section 3(1)(a) of the Act read with the terms fair and reasonable, the
court arrived at the conclusion that the maintenance, being fair and reasonable, should exceed
the iddat period but must be made within the iddat period. Such maintenance made during
iddat period should be for her entire future, that is the time after the expiration of iddat period
as well. The liability of the husband, therefore, is not limited to the iddat period. Therefore,
this Act is not in contravention of section 125 of CrPC.

Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the
husband’s liability to maintain his wife doesn’t end with the iddat period. However, it
explained this principle, not as contravening the Act which was enacted as a result of the
Shah Bano case, as a commentary on that Act.

5
Danial Latifi v. Union of India, (2001) 7 SCC 740; Nanak Chand v. Chandra Kishore Aggarwal & Ors., AIR
1970 SC 446.

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MAINTENANCE UNDER SECTION 125 CrPC

Under section 125 of CrPC, 1973, a wife, whether Muslim or non-Muslim is entitled to claim
maintenance against her husband on the ground of the husband’s neglect or refusal to
maintain her. S. 125 of the new code includes every divorcee-wife, Muslim or non-muslim.
Second proviso to s. 125(3) lays down that if the husband makes an offer to the wife to
maintain her provided that she should live with him and if the wife refuses to live with the
husband, then the Magistrate may consider any ground on which the refusal has been made
and may make an order for maintenance notwithstanding the offer made by the husband.
The section also lays down that if the husband has contracted marriage with another woman,
then it is a just ground for wife’s refusal to live with the husband. Similarly, where a husband
is impotent and is unable to discharge the marital obligations, this would also amount to a just
cause.
Sub-section 4 of section 125 contemplates that if a wife is living in adultery or without any
reason refuses to live with her husband; the wife would not be entitled to maintenance.
The question as to whether Section 125 of the code of Criminal Procedure applies to Muslims
also was concluded by two decisions of this court in Bai Tahira v. Ali Hussein Fidaalli
Chothia.6The Criminal Procedure Code provides maintenance under Section 125 for wife,
sons, and daughter up to age of majority only permitted. Section 125 of Criminal Procedure
Code is common to all people to move to the court for getting maintenance.
In Mst. Zohara Khatoon v. Mohd. Ibrahim7 the question before the court was that whether a
Muslim wife who has obtained divorce from her husband under Dissolution of Muslim
Marriage Act, 1939 entitled to claim maintenance under Section 125 of CrPC. Answering to
this question the Allahabad High Court was of the view that clause(b) of the explanation to
Section 125 would apply only if divorce proceeds from the husband that is to say that the said
clause would not apply unless the divorce was given unilaterally by the husband or was
obtained by the wife from the husband. But on appeal the Supreme Court held that the view
taken by the Allahabad High Court was erroneous and is based on wrong interpretation of
clause (b) of the explanation to Section 125. Therefore, it suggests that a Muslim wife whose
divorce has been done under the Dissolution of Muslim Marriage Act, 1939 may also claim
maintenance from the husband.

CONCLUSION
6
Bai Tahira v. Ali Hussain Fissalli Chothia, 1979 AIR 362; Fuzlunbi v. K. Khader & Anr. AIR 1980 SC 1730
7
Mst. Zohara Khatoon v. Mohd. Ibrahim, 1981 AIR 1243

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We see that under Muslim law, maintenance post-divorce has been a controversial subject
matter. Initially, there were two sources from which the right to maintenance of a divorced
Muslim woman emanated- these were section 125 of CrPC and the Muslim Personal Law.
There was a conflict between the two since, under CrPC, the right of a woman to claim
maintenance was beyond the iddat period and under Muslim Personal Law, the husband was
obliged to pay maintenance only during iddat period. To resolve this, section 127 was
inserted in CrPC, but this was unsuccessful in resolving the conflict and being a substitute for
maintenance. In this context, the famous Shah Bano Case was decided, which settled the
position of law. The case gave precedence to CrPC over Muslim Personal Law, and stated
that if the divorced woman does not have the means to maintain herself, it is the obligation of
the husband to maintain her for her entire lifetime, and hence, well beyond the iddat period.
The judgment caused a lot of unrest among traditional Islamic groups, which saw this as an
attack on their personal law. Therefore, the government enacted the Muslim Women
(Protection Of Rights On Divorce) Act, 1986. This act stated that the husband is obliged to
provide fair and reasonable maintenance within the iddat period. This led to a lot of
ambiguity and a sense of confusion prevailed over the interpretation of the terms. This
confusion was finally resolved by another landmark judgment, Daniel Latifi v. Union of
India. In this case, the Supreme Court upheld the constitutional validity of the Act and stated
that the same does not contravene Article 15,14 and 21 of the Indian Constitution.
Interpreting the terms, the Court said that the husband is obliged to provide for maintenance
of the divorced woman even beyond iddat period, since the term fair and reasonable
provision implied this. The term within was construed to mean that such a maintenance
should be made within the iddat period. However, the obligation does not end with the iddat
period. Therefore, the case is credited for serving dual purpose of maintaining the
constitutional validity of the Act and reiterating the position which was settled in the Shah
Bano Case. The position has been seconded by Court in various instances and stands
unchanged.

BIBLIOGRAPHY

Books:

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  Tahir Mahmood, The Muslim Law of lndia 1st ed., I (Allahabad: Central Law
Agency, 1980).
 Latif, Syed Abdul, Thrzumatul Quran, Id ed. Vol.2, (Delhi: Asia Publishing House,
1967).
 Nazmi, Dr. Mohammad, Mohammedan Law, 3”’ ed., (Allahabad. Central Law
Publication, 2005), L [Durrul Mukhtar (Dayal’s English Translation)].
 Syed Khalid Rasheed, Muslim Law, 6th edition, (Eastern Book Company, Lucknow,
2020)
 Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and Maintenance,
Regal Publications, New Delhi.
 Paras Diwan, Law of Marriage and Divorce, Universal Law. Publishing Co. Pvt.
Ltd., New Delhi.

Case Laws:

 Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945

 Mst. Zohara Khatoon v. Mohd. Ibrahim, 1981 AIR 1243
 Bai Tahira v. Ali Hussain Fissalli Chothia, 1979 AIR 362
 Danial Latifi v. Union of India, (2001) 7 SCC 740
 Fuzlunbi v. K. Khader Vali & Anr. AIR 1980 SC 1730
 Nanak Chand v. Chandra Kishore Aggarwal & Ors., AIR 1970 SC 446.
 Jagir Kaur & Anr. v. Jaswant Singh, AIR 1963 SC 1521