Maintenance Rights Of Muslim Women Post Divorce: A Comparative Analysis

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Author(s): Ashna Ahmad

Paper Details: Volume 4, Issue 4

Citation: IJLSSS 4(4) 07

Page No: 57 – 73

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CHAPTER 1- INTRODUCTION

1.1 OVERVIEW

Marriage in “Muslim law” is a contract that give rights to certain rights & obligations which a husband is bound to provide to the wife. In an event of divorce, it is kind of complex as to maintenance as the maintenance rights of Muslim women post-divorce in India involve a complex interaction between Islamic law (Sharia) and India’s statutory law.  The Islamic Law provides a divorced Muslim women maintenance during the iddat period (usually of 3 months), and emphasizes on the payment of Mehr (dower).

However, in the “Indian Law” a significant legal changes have been made by “the Supreme Court” in landmark case of “Shah Bano”, which ruled in favour Muslim women and said that they are entitled to maintenance beyond the iddat period under “Section 125 of Criminal Procedure Code (CrPC)”, Now in “section 144” of the “Bhartiya Nagarik Surakhsha Sanhita, (BNSS) 2023”.

Thus, the maintenance rights for Muslim women in India exhibit a balance between religious practices and secular legal protections for women.

1.2 REVIEW OF LITERATURE

According to the International Journal for Legal Research & Analysis the author suggested that, “TheMuslim Women (Protection of Rights on Divorce) Act, 1986” aimed to bring the law in line after the judgement of “Supreme Court in Shah Bano Case” (1985)[1] in which it decided that women will be entitled to maintenance even after iddat period but the act bring the law in line with Islamic principles by limiting the maintenance to iddat period and provide a onetime payment of mehr. Critics argue that the act restricts the right of Muslim women, making them dependent on only one-time settlement. On other hand, some believes that the act reflects traditional Islamic values. 

Fazur-Rahman in the Article “Post-Divorce Maintenance for Muslim Women” says that the Islamic Law provides the maintenance post-divorce only till the iddat period as according to Islam it is believed that after the divorce the wife is not an obligation on husband & they both are total stranger to each other that is why the maintenance is only given till the iddat period. 

In the book “Muslim personal law in India: The struggle for equality” the author highlights the how the Islamic Law impact on the rights of women. Emphasizes that “there is a lack of support for many divorced muslim women & the legal framework is not addressing the disparities in maintenance faced by woman”.

Thus by different Literatures, we learn that how the law is still not able to provide a strong legal provision for divorced muslim women by which they can have a adequate maintenance to fulfil their essential needs.

1.3 STATEMENT OF PROBLEM

Many Muslim women faces difficulties in receiving adequate financial support post-divorce due different legal interpretations. As, Islamic law provides limited support for a short time whereas Indian law offers A single long term financial support. The challenge is to find a way to balance the “Islamic Law & the Indian Law”.

1.4 HYPOTHESIS

Despite legal provisions, Indian Muslim women often face challenges in securing maintenance post-divorce due to gaps & different legal interpretation. Which makes it difficult to secure a maintenance which will help women in her essential needs

1.5 RESEARCH OBJECTIVES

  1. To study the provision of maintenance in Islamic Law.
  2. To study the provision of maintenance in Indian Law.
  3. How do the both differ from each other.
  4. Studying how court interpret the law in bringing justice to the muslim women.

1.6 RESEARCH QUESTIONS

  1. What rights does the Muslim Law provide to women on maintenance postdivorce?
  2. What are the rights given to Muslim Law in the Indian Law on maintenance postdivorce?
  3. What is the difference between the two law?
  4. How the Indian law maintain balance between religion & Women’s right?

1.7 RESEARCH METHODOLOGY

A comparative research methodology will be used here in which the comparison between both the Islamic Law & Indian Law will be done. Analysing how both the laws differ from each other & identifying the common things between them. Analysing the case which state the issue that women face in securing a maintenance. 

1.8 SCOPE OR LIMITATION OF THE STUDY

The scope of the study is that it focuses on the legal provisions that are given in both the laws & then compare it to see the difference & common provision in them. The limitation is that this study excludes the societal & cultural implications that the people face.

CHAPTER 2 MAINTAINANCE UNDER MUSLIM LAW

Under Muslim Law, the term maintenance is known as “nafaqah”, which generally means “what a man spends on his family”. “Fatawa–i-alamgiri”[2] says maintenance comprehends foods, clothing & lodging tough in common parlance it is limited to the first. The term “Kharcha –i- pandan” is the allowances paid to the wife by the husband. Maintenance simply means financial support provided by a person who is legally responsible to cover the essential needs, such as food, clothing, dwelling, etc. & anything necessary for their livelihood.  It is said in “Islamic Sharia law” that “a woman is entitled to maintenance during the marriage & after divorce for iddat period only”. This is done because it is considered unfair to burden a man with the obligation to maintain her anymore after her iddat period expires as the muslim marriage is a contract so the maintenance is only till the marriage exists.

 The sacred books of Muslim, “The Quran” also imposes implications on Muslims to provide maintenance: 

  • Quran: Sura 4; Aayat 34 says “…men are protectors, and maintainers of women”
  • Quran: Sura 2: Aayat 233 says … “He (husband) shall bear the cost of their (family) food clothing on equitable terms”
  • Quran: Sura 2: Aayat 241 says … “For divorced women maintenance would be provided on a reasonable scale (during iddat)”

The Quran which is communicated by “prophet Mohammed as a final expressions of Allah (god)” expressed about the obligation of the husband to maintain his wife.

2.1 CONCEPT THAT LED TO EVOLUTION OF MAINTENANCE UNDER MUSLIM LAW

“Muslim people show their by following Allah’s teaching mentioned in the Holy Quran. The concept of maintenance comes from different sources of Muslim Law, such as:

  • Holy Quran: The primary source of Muslim law is the holy Quran. The book contains teaching of God (Allah) that were communicated by Gabriel to Prophet Mohammed. The holy Quran also says that women should be given maintenance by their husband.
  • Ijma: This is considered legal decision that was given when there was no law & mujahids used to give this judgement.
  • Sunnat: The practices of “prophet Mohammad” is known as “Sunnah” & it is said that he used to maintain all his wives.

All this tells us that the concept of maintenance is not a new one & is being followed from years.”

2.2 MAINTENANCE DURING THE PERIOD OF IDDAT

“After divorce of the couple the husband has to provide for maintenance to the wife till the iddat period only. Iddat also can be of two types

  1. “Iddat done on the death of the husband: In case if the husband is dead wife is not entitled to get any maintenance but if she is pregnant at the time of the death she will receive maintenance till the pregnancy is over”. 
  2. “Iddat after divorce: The wife here is entitled to maintenance only till the period of iddat”.

2.2.1 FIXING THE MAINTENANCE 

Different schools of Muslim have different opinions on how to fix the maintenance, they have a different approach towards it. According to, “The Hanafi school” of thought says that “the status of wife should be considered while fixing the amount of maintenance for her”. Whereas, The “Shafeis School” says that “the status & capability of husband should be taken into account before fixing the maintenance”. Also some jurists think that “the capability & status of both the husband & the wife should be taken into account before fixing the maintenance”.

If the husband neglects in paying the maintenance or continuously defaults on it, the wife has the right if she wants to go to the court. The court can pass an order by which the husband can go to jail for a fixed time period.”[3]

2.3 WHAT DOES THE SECTION 144 OF BNSS SAYS ABOUT MAINTENANCE?

“Bharatiya Nagarik Surakhsha Sanhita, 2023” it gives a responsibility to people who have financial resources with them to support those who are unable to support themselves. This people includes like spouses, children & parents. The section tells the condition under which a magistrate can issue an order for maintenance & details who can be supported under what circumstances. 

These people are eligible to receive maintenance if they are unable to maintain themselves according to section 144(1)[4]:

  • “Wife- A wife who is not able to support herself. It also includes a divorced woman who has not remarried.

Explanation- Wife here includes who has been divorced, or has obtained a divorce from her husband & has not remarried.

  • Children- This includes bot legitimate & illegitimate children, also covers children who have reached adulthood but cannot support themselves because they have some physical   or mental disabilities.
  • Parents- If the parents of a person are not able to maintain themselves, they are also eligible for maintenance.”

Section 144(2)5 contains legal framework about maintenance. It talks that when a payment should start, like whether it should start from the date of court order or from the date of application, this ensures that people in need get timely financial assistance. This helps in financial management & it ensure fairness in maintenance. By virtue of this section it is ensured that financial support is handled correctly without any delays.

Section 144(3)[5] deals with consequences that an individual has to suffer who fail to follow the court orders for maintenance. It clarifies the legal action that can be taken when someone neglects their responsibilities.

The magistrate can take several actions like: 

  • Issuing a warrant: This allow the authorities to recover the amount due in the same way as fines are collected.
  • Imprisonment: The magistrate can also sentence the person to imprisonment up to one moth or until the payments are made. 

Section 144(4)[6] this section tells the condition in which wife is not entitled to maintenance.

This grounds are:

  • Living in adultery:  As adultery is considered a breach of marital duties, if she is found to be living in adultery she is not entitled to maintenance.
  • Refusal to live with her husband: If wife refuses to live with her husband without any reasonable reason, she may lose her right to maintenance.
  • Mutual Consent to live separately: If the couple is living separately by mutual consent the wife is not entitled to maintenance, as both partners agree to live apart the responsibility of maintenance is not take n into account.

Section 144(5)[7] this section provides clear grounds on which a magistrate can cancel the maintenance order. In case of adultery, unjustified refusal to live together, mutual separation. If any of the above case is the magistrate can cancel the order of maintenance.

Thus, the “section 144” ensures fairness as it gives detail on the conditions in which maintenance can be provided, it ensures that if someone doesn’t oblige with the order of court they will have to suffer the consequences.”9

CHAPTER 3 MAINTENANCE POST-DIVORCE FOR MUSLIM WOMEN IN “ISLAMIC LAW & INDIAN LAW”

3.1 IN ISLAMIC LAW

According to Islamic law (known as sharia) Maintenance after divorce is known as “nafaqah” As per Islamic law, nafaqah is the husband’s duty to meet his wife’s basic needs during their marriage and occasionally after a divorce, including food, clothing, housing, and medical bills.

In the event of divorce, the “Holy Quran” says that the husband has to maintain his wife during the iddah period after a divorce. “Iddat” Period is waiting period, usually followed by Muslim women after a divorce or by the death of the husband. “This waiting period is typically three menstrual cycles for a divorced woman or child birth for a pregnant woman”. So the husband is responsible to maintenance of his wife for the iddah period which includes all her essential needs, this duty is based on the following verse of the Quran: 

  • “Surah Al- Talaq- gives a duty to the husband to provide for maintenance to his divorced wife during the iddah period, it also says that the maintenance should be based on the husband’s financial capacity.” 
  • “And for divorced women is a provision according to what is acceptable- a duty upon the righteous”[8]. 
  • “let the women leave in iddat in the same still as you leave according to your means (husband)and why they do not restrict them and if he carries a life there (she is pregnant) then spent your substance or then deliver the burden (until the birth of child) and for divorce women let there be fair provision. This obligation on those who are manful of god”[9] The provision of maintenance is only till the iddat period under Muslim law, it does not provide any provision post this. 

3.1.1 MAINTENCE OBLIGATION POST-DIVORCE BY THE TYPE OF TALAQ

The maintenance depends on the type of divorce done in Islamic Law:

“Talaq: If the husband is asking or initiating a divorce, the wife must be provided full support from his side during the iddah period. However, if she is not capable enough to support herself after iddah period or has children also under the care, the husband may provide for maintenance.

Khula: In such cases the wife seeks for divorce through khula, by this she may give up her right to mahr or other financial claims as the condition of the divorce. Her entitlement to maintenance is more restricted here.

Faskh: This means Judicial Annulment, if the husband’s abuse or neglect results in marriage being dissolved through faskh, He is still obliged to pay maintenance to the wife in such case.”

Thus, the maintenance is usually decided by the type of divorce between the couple according to Islamic law.

3.1.2 OPINION OF DIFFERENT SCHOOOL OF THOUGHT ON MAINTENANCE POST-DIVORCE

  • “Hanafi School: It limits the maintenance strictly to iddah period, post iddah    maintenance is generally not obliged except there are children”.
  • “Maliki School: This is the Maliki School which approach for a wider interpretation, seeing Mut’ah as an acceptable route for post-divorce support. Judges may award maintenance if the wife is seen as vulnerable or dependent.”
  • “Shafi’I & Hanbali Schools: While these schools generally allow only maintenance during iddah, they, like the Malikis, affirm the permissibility of mut’ah, especially when divorce is unilateral.”
  • “Ja’fari (Shite): In Iran and Iraq, iddah is obligatory here, with a much more extended period of support after iddah if the wife is an economically disadvantaged person.”[10]

Thus different schools follow different rules for post-divorce according to the condition of the wife. 

  3.1.3 WHAT IS MUT’AH

“The Qur’an and Hadith are the sources of this idea of mut’ah. This would ensure the divorced woman’s financial stability, particularly if the divorce was not intended. While highly suggested, it is not required to follow.

According to the Hanafi school, mut’ah is not a legally binding necessity but rather an    elective practice that is generally more moral in nature.

 If the woman leaves with no alternative means of support, mut’ah is most likely applicable    under both the Maliki and Ja’fari jurisdictions. Another type of “payment of closure” that Maliki courts frequently award is mut’ah.

As a social safety mechanism for divorced women, some contemporary systems of various national laws incorporate court rulings mandating the payment of alimony.”

 3.1.4 WHERE THE ISLAMIC LAW STILL PREVAILS: –

“Most countries with significant Muslim populations integrate some aspects of sharia law in family law, while its implementation will depend on local context, cultural attitudes, and even modernization:

  • Saudi Arabia: Family law in Saudi Arabia is predominantly based on the Hanbali savoir-faire which believes in the iddah period and denies any extra upkeep costs unless the couple have children. Ibiddat, or negativity towards the remarriage of a divorced woman, is well controlled under the Saudi law with the law courts in Saudi Arabia rarely granting post marriage aids to any exwives. 
  • Pakistan: Family law in Pakistan is predominantly influenced by the Hanafi School of thought. However, it also encourages the exercise of judicial discretion in very rare situations. Where there is evidence that a woman is unable to provide for herself, the Pakistani courts may extend relief beyond the iddah period. They also ensure that children receive maintenance until they are of legal age. Egypt: The personal status law includes the framework of iddah observance provisions in the law of Egypt and permits a temporary marriage the mut’ah. Egypt’s courts are the most generous in terms of providing care for the wife as per her status, and may even extend such support for maintenance for a period of one year or more in some instances. 
  • Malaysia: In Malaysia provisions are made by the Syariah courts for the maintenance of iddah and for mut’ah support to be given depending on the circumstances of the divorcee. Support would be normally ordered where the divorcee is in a financially poorer position”[11].

The Islamic principles still prevails in many countries around the globe. However, there are still some contemporary issues on this, some scholar think that the maintenance should be based on the essential needs of the women & not on the traditional law as the economic changes are prevailing & many challenges are faced by the women today. “Post-divorce support decisions are greatly impacted by judicial discretion, which enables courts in certain nations to assess a woman’s financial circumstances and modify maintenance awards appropriately”. This adaptability is crucial for reconciling traditional Islamic law with modern requirements of society. Same is the done by the Indian Law which we will see further, “it reflects both the upholding of religious beliefs & protection of women’s right”. 

Thus, Islamic jurisprudence bases the idea of post-divorce support on the necessity for equity, but not at the expense of the marriage paradigm. Since iddah upkeep meets a short-term financial need, it does not include “mut’ah”, which is regarded as a goodwill act even if it is not required by law. 

3.2 IN INDIAN LAW

“Firstly, in India, the traditional law was followed i.e. according to “the Quran”, the maintenance post the divorce was only given till the iddat period only. After which the responsibility was on the woman’s family & not the husband. But this became a problematic as it is very limited scope for the financial support for the woman’s. This led to many debates in India., The “Supreme Court” in a landmark judgement brought a turn in law. This judgement was: 

3.2.1 MOHD. AHMED KHAN V. SHAH BANO BEGUM (1985)

In this case, 62- year-old Shah Bano had applied for the maintenance from his husband after he divorced her through “the Islamic practice of talaq-e-bid’ah (known as Triple Talaq)”. She approached “the court under Section 125 of the Criminal Procedure Code (CrPC)”, which is a secular provision which aimed at ensuring maintenance for all such wives who seek their husband’s protection but do not have any sources to support themselves.

Her husband here defended himself & said that according to the Islamic Law he had already paid the mahr & supported her during the iddat period. Thus now he has no obligation to pay more as he performed all his duties. 

“The important question here was that whether in CrPC a divorced Muslim woman entitled to maintenance more than iddat or was entitled to maintenance under the personal law only”.

The “five judge bench of the Supreme Court” ruled in favour of Shah Bano and held that she was entitled to maintenance under the provisions of “the CrPC (Now BNSS)”. The court opined that “section 125 (Now section 144 of BNSS)” was applicable to all individuals, regardless of their religion. The court said that there is a need of “UCC (Uniform Civil Code)” which is a single set of laws for all the people regardless of their religion 

This meant that Muslim women could access maintenance even after the iddat period which is a personal law that is often contested. “The judgment stated that, personal law cannot be the reason for inequality, it has to be consistent with the core values of the Constitution”.

This judgement by the Supreme Court brought many controversies among Muslim people. As this judgement was thought to be against the “Muslim personal law & the teachings of the Quran”, people argued that the decision hurt religious freedom & was against Article 25[12] which is about the right to follow their religion.

The judgement led to protest from muslim organisations. The political parties also involved & supported the court’s judgement as it was for women’s right.   

3.2.2 LEGISLATIVE REPLIED WITH: THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The legislature after the judgement of Shah Bano case found it necessary to bring a law that will stop the conflict. The Indian government led by “Prime Minister Rajiv Gandhi”, passed this act to nullify the Judgement. The act aimed to regulate maintenance provisions postdivorce according to the personal law.

“This act provides a special law for divorced woman rights, particularly in maintenance. The key provisions of the act are: 

  • Section 3 of the act stipulates that a Muslim woman who is divorced must receive “reasonable and fair provision and maintenance” during the three months following the divorce or, if she is pregnant, until she gives birth.
  • “Mehr (dower)”: The lady shall receive any unpaid mehr (dower) that was agreed upon during the marriage.
  • The Act also provided that after the iddat period the responsibility of the women’s maintenance is of her children, parents, or relatives or as a last option is also provided here which is that she can be supported by “The Waqf Board (a charitable Islamic institution)” if she is not able to support herself.
  • The act also stated that the women here can claim any property or gifts that was given to her by the husband or the relatives before, during or at the time of divorce but this does not mean that she has any rights over the husband’s property.
  • The women can also get the custody of the children born from the marriage but the court usually consider the best interest of children in such cases.

The act still was in controversy as it was still backward for the rights of the Muslim women. As the act was restricted in maintenance from what the women of other religion gets as maintenance. Critics argued that the act was still against the rights of Muslim women postdivorce”. 

In case of Hyder Khan v. Mehrunnisa (1993)[13], The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 is of a retrospective nature & the husband is liable to pay fair & reasonable maintenance even if the divorce had taken place before the passing of the Act. 

3.2.3 POST ENACTMENT OF THE ACT: 

After the act was passed many controversies were still their & people argued that the act was against the core values of the constitution. This is when the judiciary tried to resolve this issues in the below judgement: 

Danial Latifi & Anr. v. Union of India (2001)16–

In this case several petition was filed in the SC which challenged the constitutional validity of the act, saying that “it violates Article 14, 15 & 21 of the Indian constitution”. 

The supreme court upheld the constitutional validity of the act & said that the word “fair & reasonable” indicates that the husband has to pay a lump-sum payment which will cover the future needs of the women during the iddat period.

The court emphasized that with the “inclusion of lump-sum provision this will bring the act aligned with the CrPC principles that were stated by the court in Shah Bano case”.

This Judgement broadened the scope of the act & restored some benefits which were lost & also ensured that the Muslim women are not discriminate & have a fairer outcome.

“Some more other cases where the judiciary gave judgement by keeping in mind the Muslim women right’s:

Tamilnadu Waqf  Board vs. Syed Fatima Nochi[14], the Court held that it is futile for a divorced women seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative order justifying her last resort of moving against the state WaqfBoard. She can plead and prove such relevant fact regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State WaqfBoard in the first instance.

Sabra Shamim vs. Maqsood Ansari[15] it was held by the Supreme Court held that under Section 3(1) (a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.

Shabana Bano v. Imran Khan (2010)[16]: In this case also the court held that Muslim women can claim maintenance under section 125 CrPC, & the restrictions given by 1986 won’t be applicable as they should prioritize the welfare of the women rather than following the religious law.”[17]

Thus, “in order to safeguard Muslim women’s rights following divorce, particularly with regard to maintenance, the Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed in India”. Its major goal is to prevent divorced women from becoming impoverished by mandating the ex-husband to pay “fair and sufficient support” throughout the “iddat” period and, if required, afterward through the legal system.

However, because the statute only ensures maintenance during the waiting time and offers no stable, long-term solution, it has failed to adequately address the long-term financial stability of women after divorce.

Notwithstanding its flaws, “the Act is a significant step in defending Muslim women’s rights in India after divorce, while many contend that additional changes are required to guarantee full protection and legal equality.”

CHAPTER – 4 COMPARING THE ISLAMIC LAWS & THE INDIAN LAW

“The Muslim Women (Protection of Rights on Divorce) Act of 1986 aims to balance religious duties with the rights of Muslim women that are divorced. Although the Act’s provisions were first only applied to a specific interpretation of iddat-based maintenance, the court rulings have expanded its application and given Muslim women more equitable post-divorce outcomes”. By requiring extended maintenance, custody rights, and recourse to “the Waqf Board”, the Act deviates from traditional Islamic law and shows how the Indian legal system works to safeguard divorced Muslim women within a diverse situation. 

“They differ from each other in following ways: 

  1. Maintenance: – According to Islamic Law, a woman is entitled to “Nafaqah” (maintenance) during her iddat period after divorce; but, ongoing maintenance is contingent upon mutual consent or judicial intervention. Her entitlement to child custody may entitle her to some kind of financial support, and Islamic law offers her Mehr as security if it was not paid. There is no set alimony beyond the iddat period. Whereas, according to The Muslim Women’s Protection Act: A Muslim woman who has been divorced has the right to maintenance and fair and reasonable provisions from her ex-husband throughout the time of iddat. It further stipulates that a woman must be given her Mehr, possessions, and an equitable portion of any property gained in partnership. It also permits divorced women to apply a petition in the court for ongoing maintenance after the Iddat period.
  2. Custody of Children: – According to Islamic principles, custody is usually given to mother but the financial responsibility is on the father. The father ends up with guardianship responsibility. Whereas, In Indian Law the custody is determined by the

Guardian & Wards Act, where child’s best interest is kept in mind by Indian courts.”

In a summary, the Islamic law is very straight about the rights of the women for maintenance after divorce, that they will get it only till the iddat period & after it the husband doesn’t need to pay any more maintenance & she has to rely on her family & relatives for taking care of her.  Whereas, in The “Muslim Women (Protection of Rights on Divorce) Act, 1986” states that the muslim women is entitled to maintenance only till the iddat period but “a fair & reasonable payment” must be made to her for her essential needs. “This provision is very open to interpretation”. It also provides that “if there is no one to take care of the women, she will become responsibility of The Waqf Board & they will have to maintain her”. 

Though most of the provisions are same in both the laws, “The Islamic law on divorce not emphasising on the rights & welfare of the women whereas, the Indian law is open to interpretation & have a religious balance in it too”.

CHAPTER- 5 CONCLUSION

From the Above research we learned that Nafaqah, or maintenance, is the term for the financial support that a husband should give his wife both during their marriage and during the waiting period of Iddah after a divorce. Food, clothing, housing, and all other necessities for survival. Naturally, in the event of a divorce, he must continue to offer “Nafaqah” until the ending of the Iddat. Islamic maintenance is based on the idea that woman should be able to live a dignified life both during and after marriage. 

The main source of the Islamic Law is the Holy Quran. According to Islamic law, there are various forms of divorce that take into consideration the various conditions and situations that may be relevant to both men and women. “There are three types: Faskh, or a court annulment; Khula, or a divorce started by the wife but requiring her husband’s consent; and Talaq, or a divorce started by the husband”. Islamic law includes a structured divorce procedure that requires certain waiting period known as iddat, to allow for reflection, reconciliation, and perhaps even pregnancy confirmation. “During the waiting period, the woman receives financial support, and any unpaid Mahr from the husband is resolved through divorce. Beyond this point, though, Islamic law does not require ongoing upkeep because it has traditionally taken on the responsibilities of community and family support”.

In order to give divorced Muslim women living in India some financial and social support, the “Muslim Women (Protection of Rights on Divorce) Act, 1986” was passed after “the shah bano case”. When the Indian Parliament realized that divorce frequently resulted in problems in maintaining themselves, “particularly for women who had little to no family support or independent sources of their own, it loosened the strict adherence to traditional Islamic law by insisting on a broader degree of financial support and legal remedies”. In this case, the statute stipulates that during the Iddat time, the spouses must provide support that is reasonable and sufficient. Additionally, it suggests that the wife be given “all of the Mahr’s assets, properties, and debts”. 

Following the waiting period, this Act may permit women to seek additional financial support from their husbands, relatives, and, in certain cases, “The Waqf Board”. Thus, this indicates that the Indian judiciary is committed to safeguarding women who are at risk, particularly in situations when they lack the resources to maintain themselves. Because “it allows Muslim women to access secular courts in the event that their rights are violated”, this measure is especially empowering to them. 

Despite the Muslim Women Protection Act and Islamic law both aim to make divorce equitable and just, their actual implementations differ from each other. Islamic law has traditionally upheld justice by relying on family, community, and religious structures. The statute, on the other hand, establishes women’s rights within the framework of Indian law, with the ultimate secular evaluation, application, and enforcement of financial and maintenance requirements. As a result, there is “now a combination of Islamic values and secular ideals of justice and welfare that influence judicial rulings”.

SUGGESTIONS

As mentioned in the Shah Bano case if the “UCC” comes in India, all the people will be governed under a single law & dispute wont arise. Or the parliament can amend the act & make the maintenance for woman a more lenient one & more aligned with their rights & welfare. 

BIBLOGRAPHY

BOOKS

  • Asaf Ali Asghar Fyzee, Outlines of Muhammadan Law (4th ed. 1974).
  • Tahir Mahmood, Muslim Law in India and Abroad (2nd ed. 2016).
  • Zainab Chaudhry, A Comparative Study of the Indian and Pakistani Supreme Courts in Muslim Family Law (2005).

JOURNAL ARTICLES

  • Tarannum Siddiqui, Maintenance Rights in Muslim Personal Law, 2 Int’l J. Hum. & Soc. Sci. Stud. 161 (2015).
  • Harini A, Maintenance under Muslim Law, 2 Int’l J. Legal Rsch. & Analysis [5-21] (2024).
  • Rehman, F., 2024, ‘Post-Divorce Maintenance for Muslims in Pakistan and India’, Bangladesh Journal of Law, vol. 25, pp. 26-51.

[1] Mohd. Ahmad Khan vs. Shah Bano, AIR 1985, SC, 945.

[2] Aqil Ahmad , mohammedan law, 232, 23rd 2009.

[3] Tarannum Siddiqui, Maintenance Rights in Muslim Personal Law, International Journal of Humanities & Social Science Studies, vol. II, no. III, pp. 161-162.

[4] “If any person having sufficient means neglects or refuses………. her husband and has not remarried”. 5 “Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.”

[5] “If any person so ordered fails without…..ground for his wife’s refusal to live with him”.

[6] “No wife shall be entitled to receive an allowance………or if they are living separately by mutual consent”.

[7] “On proof that any wife in whose favour an……….consent, the Magistrate shall cancel the order”. 9 PSRIndia, Bhartiya Nagarik Surakhksha Sanhita, 2023.

[8] Qur’an 2:241.

[9] Aayat 1, sura II of Holy Quran.

[10] International Journal for Legal Research & Analysis, vol 2, pg-18.

[11] Judiciaries worldwide, Islamic-legal-systems.

[12] Freedom of conscience and free profession, practice and propagation of religion.

[13] Hyder Khan v. Mehrunnisa(1993)1 APLJ 82 DNC (KER). 16 Danial Latifi v. Union of India AIR 2001 SC 3958.

[14] Tarannum Siddiqui, Maintenance 17 Tamilnadu Waqf Board vs. Syed Fatima Nochi, AIR, 1995, Mad, 88.

[15] Sabra Shamim vs. Maqsood Ansari, (2004)9, SCC,616.

[16] shabana Bano vs. Imran Khan AIR 2010 SC 305.

[17] Tarannum Siddiqui, Maintenance Rights in Muslim Personal Law, International Journal of Humanities & Social Science Studies, vol. II, no. III, pp. 168.

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