JOURNEY OF MUSLIM WOMEN’S RIGHT TO NAFAQA [MAINTENANCE].
Author: Bhoomija pandey, IV year of B.A.,LL.B from IMS Unison University, Dehradun.
Every married woman is entitled to maintenance from the means of her spouse. However, problem emerges when she gets divorced or her husband dies. The law protects such woman from becoming destitute. Law ensures that basic needs of food, clothing and shelter of the legally married women are fulfilled, therefore there is this concept of maintenance. The Arabic equivalent of ‘Maintenance’ is ‘Nafaqa’.
CIRCUMSTANCES IN WHICH RIGHT TO MAINTENANCE ARISES
In following two circumstances , the Muslim women’s right to maintenance arises;-
[i] Out of status of valid marriage that is all the valid essentials of a valid marriage must be fulfilled. Such essentials are proposal and acceptance[ ijab-o-qabool], competent parties and absence of legal disability of any party.
[ii] Out of pre-nuptial agreement entered into between the parties to the marriage. It is to be ensured that such agreement should be in conformity with section 23.
MAINTENANCE DURING SUBSISTENCE OF MARRIAGE
In Muslim law marriage is a contract, the consideration is dower [mehr]. However, husband is dutybound to maintain his obedient wife while they are in wedlock. The woman has right to be maintained out of her husband’s property irrespective of her or her husband’s financial condition. Apart from maintenance, the husband may be required to pay to his wife special allowance called Kharch-i-pandan if the marriage contract stipulates so.
[a] Conditions which a wife need to fulfil to become entitled to claim maintenance:-
The wife must have attained puberty i.e such age in which she could conjugate with her husband.
She should be obedient to her husband and should offer & place herself at her husband’s power in order to provide him free access to her at all reasonable times.
[b] Situations in which Muslim woman is not entitled to maintenance:-
If she is no more in conjugal relationship with his husband without any valid reason
If she does not allow access to her shauhar [husband] without any reasonable reason.
When she is not obedient to her husband’s reasonable demands
If she has been imprisoned
If she has eloped with any person other than her husband
If she has not attained puberty
If she does not perform her marital duties.
MAINTENANCE TO WIDOWED MUSLIM WOMEN
In Muslim law, after the death of the husband, the women’s right to maintenance ceases as her right to inheritance intervenes. As per Muslim law, after the husband dies her widow has observe iddat in which she is precluded from remarrying, also she is not entitled to any sort of maintenance during such period. However, there is divergence of opinions regarding this matter. According to Fatwa-i-Alamgiri, under the Hanafi law, Muslim women is disentitled from claiming her maintenance irrespective of whether she is pregnant or not while there are Shia authorities which acknowledge widow’s right to maintenance if on the demise of her husband she was pregnant, this right shall continue until the delivery of child. Also, such maintenance would be granted out of the estate of her husband which child borne by her would be entitled to inherit.
MAINTENANCE TO DIVORCED MUSLIM WOMAN
To understand the concept of maintenance to divorced Muslim women one needs to understand its basic rules under Muslim personal law , the law laid under various legislations and the impact of judicial activism .
IN MUSLIM PERSONAL LAW
In Personal law of Muslims, the wife can rightfully claim her maintenance only till the time her iddat period is operational or until she delivers the child[in case she is pregnant at the time of divorce], after that, the former husband is no more liable for the maintenance of the wife.
The following Quranic verse brings out the complete law with respect to maintenance :-
“let the woman live(in iddat) in the same style as you live , according to your means , annoy them not , so as to restrict them. And if they carry (life in their womb) then spend (your substance) on them until they deliver their burden and if they suckle your offspring give them their recompense.”
Thus, it can be inferred from the above Ayat, that maintenance during iddat period ensure that woman remain in restrain.
It is to note that, in case divorce is not communicated to the wife, the obligation of maintenance remains until she gets to know of it, irrespective of the iddat period. Moreover, divorce due to wife’s apostacy or some other cause of criminal nature disentitles her from claiming her right of maintenance under Muslim personal law.
MAINTENANCE TO DIVORCED MUSLIM WOMAN UNDER CRIMINAL PROCEDURE CODE
According to section 125 the wife who has been divorced is entitled to be maintained by the spouse who has divorced her . Such duty would continue even after the period of iddat subject to the condition that she remains unmarried and she has not voluntarily surrendered her such right after divorce. Until Shah Bano’s case a divorced woman’s right to maintenance was under the restrain of section 127 as per which if a woman has or had received on divorce the whole sum due to her under any customary or personal law then her right under section 125 would be forfeited.
In the leading Shah Bano case, it was contended that Mehr or dower is a customary amount payable on divorce therefore if it is paid in whole, the husband is not liable to maintain her wife under section 125 as per section 127. The Constitutional bench of the honourable Supreme Court rejected this contention opining that just because deferred dower is payable at the time of dissolution of marriage, it is not just to conclude that it is payable on divorce. Such payment can’t tantamount to amount payable on divorce as mehr is an amount payable as consideration of marriage not in consideration of divorce. In this way by way of judicial interpretation and judicial sensitivity the court furthered the cause of social justice. The court further opined that section 125 is a secular and it overrides personal law in case of conflict between the two.
MAINTENANCE OF DIVORCED WOMEN UNDER THE MUSLIM WOMEN(PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986
Soon after Shah Bano Case, the Parliament legislated The Muslim Women(Protection of Rights On Divorce) Act, 1986, with the aim of protecting the right of maintenance of Muslim women.
Section 3 of the Act, talks about granting of ‘fair’ and ‘reasonable provision’ and maintenance within the period of iddat . It also obliges the husband to pay the wife all properties which were given to her by her relatives. Moreover, she is also entitled to maintenance for the children for two years from the date of their birth.
As per section 4, even after the expiry of the period of iddat , if the wife remains unable to maintain herself , then she can file an application before the magistrate.
The magistrate having received such application, would order her relatives who have the means and who would be entitled to inherit her property on her death, to pay the woman the maintenance in the proportions in which they would inherit her property. In case the relatives are unable to pay, the court may order other relatives who have sufficient means to pay the wife, in case no relative is found , then the State wakf board would be liable to maintain the woman.
Thus, in this way the dignity and livelihood of the woman is secured by the legislature.
As per section 5 of the Act, the husband and the wife would be governed by section 125 to section 128 if they mutually decide to exercise this option in the manner stated therein.
JUDICIAL DECISIONS POST 1986 ACT
In the case of Adib ali V. Raisa begum, the Rajasthan High Court, held that orders for maintenance passed under section 125 are ineffective after coming into fore of act, 1986.
Similar was the view of the court in the case of Rizwan Regum V. Maitullah.
However, in the case Hazran v. Abdul Rahman and A.A Abdullah v. A.B. Mohmuna Saiyad Bhai , the court held that Section 125 – section 128 are applicable on the divorced Muslim women even after coming into force of the act of 1986.
It is interesting to note that the expression, “reasonable and fair provision and maintenance” in section 3 has been interpreted by the court in a very diversified manner .
In the case of Ali V. Sufaira , the court held that under section 3(1)(a) of the Act, 1986, a divorced woman is not only entitled to maintenance for the period of iddat from her former husband but she is also entitled to a reasonable and fair provision for her future.
It is very relaxing that Kerela High Court in Syed Fazal P.T V. Union Of India, for the first time gave effect to section 4(2) of the Act of 1986 by ordering the Wakf Bard to pay maintenance to the woman.In the case of Secretary T.N Wakf Board V. Syed Fatima Nachi ,it was held that a suit can directly be instituted against the state wakf board if inability under section 4(1) is established.
In the case of Danial Latifi v. Union of India, the constitutional validity of the Act, 1986 was in issue, the Apex court while upholding the same held that Parliament seems to intend that the divorced woman gets adequate means of livelihood after the divorce and therefore, the word ‘provision’ is used to indicate something provided in advance for fulfilling the future needs extending beyond iddat period of the divorced woman.
Moreover, in the case of Shabana Bano V. Imran Khan, the Apex court held that section 125 is applicable on the divorced woman, even after the expiry of the iddat period , so long as she remains unmarried.
In the light of the above discussion, it could be stated that the journey of Muslim women’s right to Maintenance has been long and complex. The historical event which raised the consciousness of Muslim women post which they started asserting their right of Maintenance is Shah Bano case. It is after this case that 1986 Act came into picture and its various judicial interpretations led to the liberalisation of Muslim women as it is only after judiciary stepped in that women got right to fair ‘provision’ and maintenance even after iddat period. It is only because of judicial rulings that now Muslim women can claim both their maintenance and dower and can even take refuge of sections 125-128 to claim maintenance after expiry of iddat period provided they remain unmarried. However, still long miles are required to be covered to grant equality and fairness to Muslim women, for this it is the need of the time to enact and implement Uniform civil code envisaged under Article 44 of our Constituton.