Maintenance for Muslim Women

• Context (TH | IE): The Supreme Court ruled that a divorced Muslim woman is entitled to a claim of maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973.

Recent SC ruling

• Section 125 CrPC is “embedded in the text, structure and philosophy of the Constitution” as a social justice measure.
• It is “aligned” with the power to create special provisions for women under Article 15(3) of the Constitution and the obligation of the State under Article 39(e) to ensure “that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”.
• Maintenance under Section 125 CrPC exists “in addition” to the provisions for maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRD Act), not “against” it.

Credits: HT

Evolution of the law of maintenance

• The law governing maintenance for destitute wives, children, and parents has been codified under Section 125 of the CrPC.
• Section 125 CrPC places an obligation on “any person having sufficient means” to maintain “his wife” or “his legitimate or illegitimate minor child” if they are unable to maintain themselves — typically through monetary support at regular intervals.
• The word “wife” in the section also includes a divorced woman who has not re-married. It does not specify anything about the woman’s religion.
• States have made region-specific amendments to allow a ceiling on maintenance amount by the court.
• Recent SC ruling reiterates that maintenance under Section 125 CrPC exists “in addition” to the provisions for maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRD Act), not “against” it.

Maintenance under the MWPRD Act

• The 1986 Act is a religion-specific law that provides for a procedure for a Muslim woman to claim maintenance during divorce.
• It was enacted to essentially nullify the SC’s decision in Mohd. Ahmad Khan v. Shah Bano Begum (Shah Bano case) which upheld a Muslim woman’s right to seek maintenance from her divorced husband under Section 125 of the CrPC.
• Section 3 of the 1986 Act guarantees the payment of maintenance to a divorced Muslim woman by her former husband only during the period of iddat — a period, usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry.
• The amount shall equal the amount of mahr or dowry given to her at the time of her marriage or any time after that.
• After the completion of the iddat period, a woman can approach a first-class magistrate for maintenance in case she has not remarried and is not in a position to take care of herself financially.

SC on Maintenance

• Danial Latifi case (2001): The SC upheld the constitutional validity of the 1986 Act by extending the maintenance right of a Muslim woman until she remarries. It reduced the period of maintenance to the completion of iddat.
• Shabana Bano v. Imran Khan case (2009): SC reiterated a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC if she does not remarry. It further highlighted that such relief would be extended even after the expiry of the iddat period.
• Patna HC in 2009: It held that Muslim women could avail maintenance under the CrPC and the 1986 Act. If she chose the CrPC, she could not be said to be debarred from seeking maintenance on account of being a divorced Muslim lady.