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Central India Law Quarterly Legal Rights Of Maintenance & Guardianship Of Muslim Women VoI.XIII] LEGAL RIGHTS OF MAINTENANCE & GUARDIANSHIP OF MUSLIM WOMEN Justice Or. Smt. Serojini Saxena" Legal rights of Muslim women are well defined In Muslim Law. Even then, above rights of Muslim women are Interpreted by various High
Courts as ell as by the Apex Court. Through these pages. I shall try to give a brief resume of those decisions. Women rights of inheritance, polygamy. triple talaq divorce, maintenance and ban on entry into Mosques has enraged women activists in India as well as in Muslim countries. In Muslim Law. a divorced women . is entitled to get maintenance from her husband dUring the period of Iddat (3 lunar months). In Shah Bano's judgments (Mohd, Ahmed Khan Vs. Shah Bano Begum, AIR 1985 SC 945), the Apex Court decided divorced Muslim woman's claim to get maintenance from her husband under Sec. 125 of the Cr.P.C. In that case, their Lordships held that after divorce during iddat period the husband is liable to pay maintenance to his wife under Muslim Law, but after the period of Iddat if she IS unable to maintain herself then she canfile a petition under Sec. 125 Cr. P.C. aqainst 'her husband for getting maintenance for herself till she remarries and certainly as provided under Sec. 125 of the Code. In that judgment, the Apex Court held that to this extent Sec. 125 of the Code overrides personal law. The Apex Court held. 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 Sec. 125. Therefore. it cannot be said that there is conflict between the provisions of Sec. 125 and those of the Muslim Personal Law on the question of Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself". In Shah Bano's case, the Apex Court approved Its earlier decisions given in Bai Tahira Vs. Ali Hussain, AIR 1979 SC 362 and FAzlunbi Vs. K. Khader Vali, AIR 1980 S.C. 1730. Their Lordships also held that Mahr is not the amount payable by the husband to the wife on divorce. Their
Chairperson, MY. Arbitration Tribunal. Bhopal. • • 408 CENTRAL INDIA LAW QUARTERLY [2000 Lordships have quoted the decision given by Privy Council in Harnira Bibi Vs. Zubaide Bibi, AIR 1916 P.C. 46 at page 48, wherein Privy Council held that; Dower is an essential incident under the Mussulman law to the' status of marriage to such an extent that is to say that when it is unspecified at the "me the marriage is contracted, the law declares that it must be adjusted on definite principles."
Their Lordships of the Privy Council further held that it is either prompt dower payable before the wife can be called upon to enter the conjugal domicil; the other deferred payable on the dissolution of the contract by the death of either of the parties or by divorce. This statement of law was adopted in another decision of Privy Council In Sabit Husain Vs. Farzand Hasan AIR 1930 P.C. 80 at page 83. It is specifically observed that Mr. syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Hussain. This judgment of Shah Bano created furor in the Muslim community and it culminated in passing of the Act i.e. Muslim Women (protection of Rights on Divorce) Act, 1986. Its Sec. 3 provides that notwithstanding anything contained in any other law for the time being in force, the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Its sub-sec. (2) lays down that where a reasonable and fair provision and maintenance has not been made and paid, she may file an application before a Magistrate for an order of payment of such provision and maintenance. While deciding such an application under sub-sec. (3), the . Magistrate may, if he is satisfied that her husband having sufficient means has failed or neglected to make qr pay her within the iddat period a
reasonable and fair provision and maintenance for her, make an order directing the husband to pay such reasonable and fair provision and maintenance for her, make an order directing the husband to pay such reasonable and fair provision and maintenance to the divorced woman, as he may determine as fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and the means of her former husband. Sec. 4 of the Act further provides that notwithstanding anything contained in the toreqoinq provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman LEGAL RIGHTS OF MAINTENANCE 409 Vol.XlIlJ has not remarried and is not able to maintain herself and is desirous of obtaining maintenance for post iddat period, the Magistrate may direct payment to be made to her by her children, parents, other relatives of Wak Board in that sequence. Sec. 5 of the Act gives a right to both the parties to give an option to be governed by S. 125 to 128 of the Code when their application under S. 3(2) of the Act is pending for disposal. Sec. 7 of the Act lays down that every application by a divorced woman under S. 125 or 127 of the Code pending on the date of commencement of this Act shall
be disposed off by the Magistrate in accordance with the provisions of this Act, but subject to the provisions of S.5. All these provisions of this Act, in short Muslim Women Act, are interpreted by various High Courts. In Peer Mohd. Vs. Hasinabee (1995 JLJ 110), it. is held that husband gave divorce to his wife after fixation of maintenance by the trial court u/s. 125 of the Code divorce was not given during proceedings before trial court. hence divorce at revisional stage makes no change. Provisions of Muslim Women Act do not govern the case. In Abdul Rashid Vs. Smt. Farida's. (1994 MPLJ 583) judgment, relying on Apex Court's decision M.P. High Court has reiterated that Sec. 125 of the Code is a secular provision. It applies to all persons belonging to all religions and has no relationship with personal law of parties. Right to maintenance u/s. 125 of the Code is not taken away by Muslim Women Act. On divorce Muslim woman's application will bo.qovemed by the said Act from date of divorce. Husband is liable to maintain her during iddat period only and not thereafter. Every application under Sec. 125 of the Code made before or after divorce would be governed by 1986 Act. Under Sec. 4 of this Act, a divorced woman can obtain maintenance for post iddat period from her children, parents. other relatives and State Wakf Board, if there is any, if show avails this remedy.
In Abida Begam Vs. Shafi Mohammad (1996 MPLJ Note 14) Sec. 125 of the Code and Sec. 3(2) and Sees. 5 & 7 of the MuslimWomen Act are again interpreted by a single Bench of M.P. High Court. In that case, maintenance was granted under Sec. 125 of the Code to wife and daughter prior to coming Into force of Muslim Women Act. It IS held that such order would continue to remain valid and enforceable even after commencement of Muslim Women Act. Sessions Judge's order in revision setting aside maintenance order on the ground 'that provisions of Sec. 125 Cr. P.C. ceased to govern parties in view of their failure to exercise option under Sec. 5 of the Act was erroneous. It is clarified that Secs. 125 to 128 of the
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410 CENTRAL INDIA LAW QUARTERLY [2000 Act, if the parties to the proceedings. on the first date of hearing, exercise their option in that regard either jointly or separately. It IS difficult to hold that the provisions of the Act would apply to proceedings. already
concluded u/s. 125 of the Code. The provisions contained in Sec. 125 are beneficial provisions incorporated in the Code for safeguarding the interest of deserted/divorced hapless women. who are unable to maintain themselves. As IS apparent from the nomenclature of the 1986 Act, this Act was enacted by the legislature with a view to protect the rights of divorced Muslim women. Keeping the above object of enacting these provisions in mind, the correct interpretation of Sec. 7 of the Act would be to hold that the orders passed by the Magistrate under the provisions of Se. 125 of the Code prior to the coming into force of the Act, would continue to remain valid and enforceable even after the commencement of the Act. Any other interpretation would frustrate the very purpose enacting the 1986 Act. In Julekha BI Vs. Mohammad Fazal, reported in 1999 (2) MPLJ 64, a single JUdge of M.P. Court has interpreted the implications of Sec. 125 of the Core and of Sec. 3 of Muslim Women Act. In that case, order of maintenance was passed in favour of Muslim wife under Sec. 125 of the Code. Thereafter. husband gave divorce to his wife. When wife enforced the order of maintenance, the husband opposed it on the ground of subsequent divorce. High Court held that divorced wife IS not entitled to get maintenance from her husband after the period of iddat. Provisions of Sec. 3( 1)(a) and Sec. 125 of the Code were
interpreted by a Full Bench of Andhra Pradesh High Court In Usman Khan Rahamani Vs. Fathimunnisa Begum. 1990 Crl.L.J. 1364. The Full Bench held that: "Muslim woman shall be entitled to a reasonable and fair maintenance within the Iddat period to be made and paid by her former husband. it is equally clear that r.easonable and fair provision and maintenance has to be made and paid by the husband within the period of Iddat, which has been defined under S.2(b) of the Act. There is nothing in the section which can be read to mean that the husband is liable to make reasonable and maintenance beyond the period of lddat' Interpreting the words "within" occurring in Sec. 3(1 )(a) of the Act. the Full Bench held "It clearly means that is an obligation on the part of
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the husband to provide fair and reasonable maintenance to his divorced w[fewithin the period of Iddat and for the period of Iddat only." It cannot be interpreted that this liability of the husband extends beyond the period of Iddat. To take a contrary view would result in complete negation of the principles envisaged under S.3 (1)(a) of the Act of 1986 and defeat the very purpose of the Act. SA casts liability on the relatives or the wakf Board to pay maintenance to the divorced woman of the divorced woman if the divorced woman has not remarried or is unable to maintain herself after the Iddat period. Their Lordships also held that the word 'provision' and 'maintenance' in Sec. 3(1)(a) convey same meaning. They cannot be read as meaning two different things. Liability of husband to pay maintenance as well as to make reasonable provision are confined only to the period of Iddat. This was the view of Justice Ramanujulu and Justice Sardar Ali Khan of this Bench. Justice Bhaskar Rao gave a minority view disagreeing only on this point that a reasonable and fair provision and maintenance to be made and paid do not convey the same meaning. The Muslim woman's right to claim maintenance after Iddat period under Sec.. 125 of the Code was
crystallized by Shah Bano's judgment, which came Into controversy and under a threat of erosion. In this background of protection, the resultant provisions are 5.3(1 )(a) and S.5 of the Act, the former casting a liability on the husband to make a reasonable and fair provision even for the period beyond the Iddat apart from payment of maintenance within the Iddat period and the latter giving the option to the parties to be governed by S.125 to 128 of the Code. If it is simply a question of payment of maintenance for the Iddat period that is truly intended by Sec. 3 (1 )(a) and nothing more, neither the Legislature would have wasted its breath by incorporating the liability of making a provision reasonable and fair, apart from paying maintenance, in Sec. 3(1)(a), nor would it have allowed Sec. 5 to remain otiose on the statute since no Muslim formed husband with minimum commonsence would opt for governance by the provisions of Sees. 125 to 128 of the Code of Criminal Procedure in the absence of any corresponding or balancing liability cast on him by one or other provision in the statute. It is equally important to note that S.4. of the Sct significantly omits the word 'provision' from the term "a reasonable and fair provision and maintenance". The words in Sec. 3(1)(a) "within the iddat period" lay stress on the
urgency of making or paying and they cannot be read as confining the • I 412 [2000
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liability to the limited period of lddat. save in so far as maintenance is concerned the Muslim Law is' settled on that aspect. Interpreting t~e distinct liability of making a reasonable and fair provision as having been confined to the penon of iddat would not only render the very S.5 on the statute otiose but also defeats the specific purpose of casting that liability on the former husband by S.3(1 )(a) in contradistinction from SA whereunder the liability of either the relatives or the Wakf Board is only to pay maintenance and there is absolutely no liability to make any provision under S.4 of the Act The learned minority judge also relied on (1988) 3 Crimes 147 - a decision of Kerala High Court in Ali Vs. Sutaira, whichthe majority view distinqurshsd. The Minority Judge after quoting the definition of 'provision' and 'maintenance' from Webster's means, an amount set apart to meet a known liability, the amount of which cannot be decided with accuracy. The known liability under Sec. 3(1 )(a) of a husband is to provide for the future of the divorced Muslim woman. Thus, according to the minority view
'provision' and 'maintenance' cannot be read together in a compendious . form, The majority V1fJW also referred to Md. Yunus Vs. Bibi Pheakani (1987) 2 Crimes 241, a judgment by single JUdge. of Pal na High Court; Abid Ali Vs. Mst Raisa Begum, 1988 (1) Raj. L.R. - a Division Bench judqrnent of Hajastan High Court wherein it is held that the husband is liable to make provision as well as to pay maintenacne only during the period of Iddat. They dissented from the judgment of Gujrat High Court reported in AA Abdulla Vs. AB. Mohmuna Saivavhai. AIR 1988 Guj. 141, wherein the learned single JUdge took the view that "a divorced Muslim woman is entitled to maintenace after contemplating her future needs and the maintenance is not limited only up to Iddat period. The pharase used in S.3 (1)(a) of the Act of 1986 is "reasonable and fair provision and maintenance to be made and paid to her" indicates that the Parliament intended to see that the divorced woman gets sufficient means of livelihood after the divorce and that she does not become destitute or is not thrown on the streets without a roof over her head and her children." The learned JUdge observed that the word 'provision' itsel1 Indicates that something is provided In advance for meeting some needs' A similar view was taken by Punjab & Haryana High Court in Hazran Vs. Abdual
Rehman, 1989 Cri LJ 1519. wherein their Lordships held that order of maintenance u/s. 125 is not affected by the Muslim Women Act. L.EGAL RIGHTS OF MAINTENANCE 413 Vol.Xlllj In A. Abdual Gafoor Vs. A.U. Pathurnrna Beevi, 19H8 Cn L.J 1224, Single Judge of Kerala High Court held that after the enactment of Muslim Women Act divorced Muslim wife cannot Invoke S. S i :27 of the Code seeking snhancernent of her maintenacne Recently (Ju:ie, 2000) in a landmark Judgment. Calcutta High Court has ruled that divorced Muslim women will get maintencance allowance till they remarry. Justice Basudev Panigrahi decided the revision petition flied by divorced Muslim woman Sahkila Parvin. Deserted by her husband Haidar Ali in 1993 Shakila filed a petition seeking marntenace allowance against her husband. Despit service of the copy of the petition, the husband did not respond. On 15th July, the trial court granted maintenacne allowance of Rs. 800/- for a customary three months Iddat and Denmehr of f1S. 2,5001- to Shakila assailed the said order by filing revision before the Calcutta High Court While decidinq her revision petition, Justice Panigrahi held, the trial court had wrongly construed the provisions of S.3 of the Muslim Women Act and held that the expression such as "all reasonable and fair provisions and maintenance to be made
and paid to her" should be construed liberally. His Lordship observed that the Supreme Court had unequivocally held that the provisions of Sec. 125 of the Code overrode the personal law and it necessitated the enactment of the Muslim Women Act in Parliament In 1986. Referring to 1994 judgment of a DIVision Bench of Allahbad High Court. Justice Paniqrahi said, "according to the provisions of Sec. 125(3) of the Act, the right to receive maintenance allowance cannot be restricted to the period of iddat only in case of a divorced woman. Bombay High Court has also recently on 11th July, 2000, while answering a reference made in Criminal Petition No. 1296 of 1995 Karim Abdul Rehman Shaikh Vs. Shehnaz Karim Shaikh & Drs. and Criminal Revision Application No. 150 of 1998 Rahim Unus Chagla Vs. Mubina Banu Rahim Shaikh & Anr., interpretetJ the various provisions of Muslim women Act and Sec. 125 of the Code. A Full Bench of Justice Ajit P. Shah, Smt. Hanjana Desai & J.A. Patel, JJ held that divorced Muslim women cannot apply for maintenance under the Code and will have to do so only under the Muslim Women Act. Two phrases reasonable and fair provision" 'and "maintenance" carry distinct meaning. Tile intention of the legislature is clear as they have chosen to employ the said expressions in one section. If they were to convey the same meaning there was no reason for the legislature to use two different expressions. Answering the
questions posed before them by way of referef1ce the Full Bench held: • • 414 CENTRAL INDIA LAW QUARTERLY [2000 The 1st question i) of the
Whether the Muslim husband's liability under section 3(a)
Muslim Women Act to make a reasonable and fair provision and pay maintenance is only restricted to the Iddat period or whether it extends beyond thelddat period? Answer i) wife
The husband's liability to pay maintenance to a divorced
ceases the moment Iddat period gets over He has to pay maintenance to her within the Iddat period for the Iddat period. But he has to make reasonable and fair provision for her within Iddat period, which should take care of her for the rest of her life or till she incurs any disability under the Muslim Women' Act. While deciding the amount regard will be had to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband and the like circumstances. If the husband is unable to arrange for such a lumpsum payment he can ask for instalments and the court shall consider granting him
instalments Till the husband makes the fair and reasonable provision, the Magistrate may direct monthly payment to be made to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision. The 2nd question ii) Whether the Muslim Women Act has the effect of invalidating the orders/judgments passed under Section 125 of the Code i.e. whether the Muslim Women Act operates retrospectively so as to divest parties of vested rights? Answer ii) the
The orders passed under section 125 of the Code prior to
enactment of the Muslim Women Act are not nullified by reason of the coming into force of the Muslim Women Act. Such orders are binding on both sides and can be executed under section 128 of the Code. The Muslim Women Act does not divest the divorced woman of the right to get maintenance under section 125 of the Code vested in her by reason of orders of a competent court passed prior to its coming Into force. The 3rd question iii) Whether after the commencement of the Muslim Women Act, a Muslim divorced wife can apply for maintenance by invoking the provisions of chapter IX of the Code?
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Answer iii) After commencement of the Muslim Women Act a Muslim divorced wife can not apply for maintenance under the provisions of Chapter IX of the Code. It is only under section 5 of the Muslim Women Act. by agreement can the husband and the divorced wife approach a magistrate under chapter IX of the Code The 4th question iv) Whether the Family Court has jurisdiction to try applications of the Muslim divorced women for maintenance after coming into force of the Muslim Women Act? Answer iv) After coming into force of the Muslim Women Act. a Muslim Woman can apply under sections 3 and 4 of the said Act only to Magistrate of the first class having jurisdiction under the Code. The Family Court cannot deal with such applications. The Full Bench was also alive of the fact that the decision of Division Bench of Bombay High Court in Allabuksh's case [Allabuksh Karim Shaikh Vs. Nooriahan Allabuksh Shaikh (1994 Mh.L.J. 1376) rendered that judgment on 22.6.1994. It was followed by the learned single Judge of Bombay High Court in Shaikh Babbu Vs. Sayeda Masart Begum,
1999 (3) Mh.L.J 465. These decisions are holding the field till date. Obviously, therefore, the fate of a number of rnattefs has been decided on the basis of the said judgment. Bearing the above fact in mind, after having answered the questions, the Full bench issued following directions in the light of the observations made by them in this judgment. (a) All pending applications under section 125 of the Code filed by divorced Muslim women pending after the commencement of the Muslim Women Act will be treated as applications under the Muslim women Act and will be disposed of as per the provisions of the said Act. (b) All applications under section 125 of the Code filed by divorced Muslim Women which are pending in the Family Court will be transferred to the concerned Magistrate's Court for disposal according to the provisions of the Muslim Women Act. Interim orders. passed therein will be continued till the Magistrate disposes them of. • • 416 CENTRAL INDIA LAW QUARTERLY [2000 (c) All applications under section 125 of the Code filed by divorced Muslim Women, which have been decided finally pursuant to the decision of the Division Bench of this Court in allabuksh's case (supra) will not be reopened due to the present judqernent. The other connected question for consideration is whether Muslim
Women Act has In any way affected Muslim divorcee's right to claim maintenance for her children residing with her. Gaffur Vs. Smt. Salma, 1996 JLJ 39, propounds that: . "Under Sec. 125 of the Cr.P.C., Muslim father is liable to maintain his children. Divorced wife would not release him form liability. Under Muslim Women Act additional protection has been provided for maintenance of children. It has not taken away the right of children to be maintained by their father even if he has divorced his wife". In Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 S.CC 233- The Apex Court considered the right of minor children staying with their divorced mother to claim maintenance under S. 125 Cr. P.C. from their Muslim father having sufficient means till they attain majority or in case of females till they get married. The Apex Court has taken mto consideration 3 (1) (b) of Muslim Women Act. And observed that this provision provides additional maintenance to the divorced mother for maintaining her infant child for the fosterage period of two years from the date of birth of the child and is independent of the right of the minor children unable to maintain themselves to claim maintenance under S. 125. That right is absolute under S. 125 as well as under Muslim personal law. Benefit of S. 125 is available irrespective of religion and it would be unreasonable,
unfair and inequitable to deny this benefit to the children only on ground of their being born of Muslim parents. Thus, we have seen that provisions of Muslim Women Act have been interpreted by various High Courts keeping in view the object with which this Act was enacted. To my knowledge, up till now no such case has reached the Apex Court, hence still Apex Court's interpretation of the provisions of Sec. 3 are awaited in the legal world. The very purpose of enacting this Act was to protect the rights of divorced Muslim women. The very name of the Act is indicative of the object with which this Act was enacted. When we compare Secs..3 & 4, it becomes apparent that Sec. 3(1)(a) makes husband liable for a reasonable and few provision and 417 VoI.XIII] LEGAL R1GHTS OF MAINTENANCE maint~nance to be made and paid to the divorced women within the iddat period, but u/s. 4 when a divorced woman who has not remarried, is unable to maintain rerself the iddat penod. she is entitled to approach the Magistrate seeking order for the grant of maintenance to be passed against her children. parents, other relations and finally the Waiallowed the mother to retain custody of the child and rejected the father's appliCation, the welfare of the minor being the prime consideration. I •
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In Zahirul Hassan Vs. State of U.P. 1988 Cr.: L.J. 230, Allahabad , High Court has taken the view that: "The reason of the rule is that if a woman marries a person who is not closely related to the child, the child may not be treated kindly. It is otherwise, however, where the mother, for instance, marries her child's near relation because shch man on ramarriaqe is also expected to be kind to the child. But ttat is not absolute and it is open to the Court to appoint the mother as thequardian even if she has married a stranger, if the Court considers it to be In the interest of the minor." In Irfan Ahmed Shaikh Vs. Mumtaz AIR 1999 Bam. 25 the question of custody of minor child was under consideration. There was divorce between the parents. Mother remarred a stranger. The High Court held, that mother rernarryinq a stranger is not qualified to get custody on that count. But, treatment of child by stranger that is step-father is of paramount importance. There was absence of evidence of illtreatment to child. Further, the child also refused to go with father but desired to live with mother and step-father. On these facts, custody of minor child was given to mother.
Thus, we have seen the underlying principles 01 Mohammedan Law on this aspect also revolve around the welfare of the child. There is no dogmatic insistence that the child must remain with the father even against the wishes of the child the moment the mother gets remarried to a stranger. That is to happen in normal condition. The Mohammedan Law has alo provided for exceptional circumstances. It has never ignored the wishes of a minor child who is of the age of discretion like Husna in Irfan ahmed's case. The Muslim male still does not want to give up his right of polygamy and unilateral divorce. Keeping women in parda is common feature of some Muslim community. Many a social practice amongst Muslims are very retrograde and detrimental to the lives of women. Women's riqhts of inheritance, polygamy, triple talag, divorce, maintenance and the ban on her entry into mosques shows the subordinate position of women in the community. There have been no major reform movements in the country improving the lot of women. Despite these adverse circumstances, there have been efforts by scattered individuals to initiate the reform process among Muslim women.
VoI.XIII] 423
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Recently, Kerals has initiated the practice of allowing Muslim women to enter and offer prayers in the mosque. The example of kerala is now being emulated in Lucknow too. Many Muslim groups are also working on an ideal Nikahnama (marriage contract) which can protect the rights of Vliomen after marriage. The Muslim scripture gives some ground to fight for better rights for women, though they are still far away from gender equality. The reform process in Muslim countries has begun by taking advantage of the scriptural version of religion. In Turkey and Tunisia, polygamy and unilateral divorce is not allowed and maintenance for a divoced woman is mandatory for three years. In Pakistan divorce is permissible only thorugh an arbitration council and a man who takes a second wife without the consent of the first is liable to pay a fine of Rs. 10,000/- and or imprisonment upto three years (as Zeenat Shaukat Ali has stated in her interview Tal 24.8.97). Recent court's judgement in Pakistan and Bangladesh have taken fairly progressive view in matters pertaining to women's rights in marriage.
Leg a l S erv ice I n dia . co m
Maintenance: Under Hindu, Muslim, Christian And Parsi Laws
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Introduction Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons is limited to Rs 500 per month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure. Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto. This Act inter alia provides that a divorced Muslim woman shall be entitled to (a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and (d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order. Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried. The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Maintenance under Hindu law: Maintenance is a right to get necessities which are reasonable from another. it has been held in various cases that maintenance includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live. Right to maintenance is not a transferable right. Maintenance without divorce The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right. Maintenance as main relief: for wife The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists. Grounds for award of maintenance Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows: a. The husband has deserted her or has willfully neglected her; b. The husband has treated her with cruelty; c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease; d. The husband has any other wife living; e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere; f. The husband has ceased to a Hindu by conversion to any other religion; g. Any other cause justifying her separate living; Bar to relief Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has indulged in adulterous relationship or has converted herself into any other religion thereby ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the husband and wife is non-existent and therefore no right of maintenance accrues to wife. However, thanks to judicial activism, in particular cases the presumption of marriage is given more weightage and the bars to maintenance are removed. Other dependents who can claim maintenance Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from their children. The term parent here also includes an issueless stepmother. Maintenance Under Muslim Law Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands." The Act makes provision for matters connected therewith or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under various sections that distinctively lay out the criterion for women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled to have a reasonable and fair
provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to the period of idda.
it further provides that a woman , if not granted maintenance can approach the Wakf board for grant as under section (b)which states that If she fails to get maintenance from her husband, she can claim it from relatives failing which, from the Waqf Board. An application of divorced wife under Section 3(2) can be disposed of under the provisions of Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested right of the Muslim woman. All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without a roof over her head and without any means of sustaining herself. Protection to Divorced WomenSub-section (1) of Section 3 lays down that a divorced Muslim woman is entitled to: (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after the divorce. Maintenance Under Christian Law A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings. If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38 IX-Alimony S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just: Provided that alimony pending the suit shall in no case exceed one fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be. 37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. Power to order monthly or weekly payments. -In every such case, the Court may make an order on the husband for payment to the wife of such
monthly or weekly sums for her maintenance and support as the Court may think reasonable: Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the Court seems fit. 38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do. Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular realm Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons was limited to Rs 500 per month but now it has been increased and the magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap Order For Maintenance Of Wives, Children And Parents S.125.Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation. - For the purposes of this Chapter, (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is a just ground for so doing. Explanation .- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. The objective of this section as expressed by Krishna Iyer, J. is ?to ameliorate the economic condition of neglected wives and discarded divorcees? Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But these criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that Court to make such orders may be just. It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions. A person may sue for maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his or her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to maintain his wife, children, father or mother by a person who has sufficient means to maintain them. The criterion is not whether a person is actually having means, but if he is capable of earning he will be considered to have sufficient means. The burden of proof is on him to show that he has no sufficient means to maintain and to provide maintenance. Maintenance Under Parsi Law: Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at all unlike the civil proceedings. If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is refusing to pay maintenance even after the order of the court. The court can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried. S.40. Permanent alimony and maintenance (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant?s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant. (2) The Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) The Court if it is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.
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vorce: Law and Procedure
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Right to Maintenance V. Padmanabhan, Senior Advocate Introduction: The advent of the nuclear family, due to globalization and consumerism, ensured the disintegration of the Joint Family system which was prevalent for several Yugas. The dismantling of the Joint family resulted in withdrawal of the support system which acted as a buffer to weather difficult periods during the early phase of marital life. Consequently, a couple had to find both the psychological and financial support within and by dint of hard work respectively which invariably culminated in a stressful life. The Consequence is the break down of family bonding resulting in divorce. This arises due to incompatibility between spouses. The children also have to endure the psychological conflict due to differences between parents. The wife and the children required sustenance and the law stepped into ensure they are not subjected to distress. Genesis According to Black's legal Dictionary the origin of the expression "Alimony" lies in the Latin Word "Alimonia" which means sustenance. It has not been defined in any of the statutes in India. Sustenance stems from the common Law right of the Divorced wife to support by her husband. "Alimony in Gross" or "in lumpsum" is in the nature of final property settlement. However, Alimony in strict sense contemplates payment of money at regular intervals. It also includes, permanent and pendatelite spousal support. Generally it is restricted to money, unless otherwise authorised by statute. It is a term used to describe the allowance made to a married women when she is under necessity to live apart from her spouse. The object of the provision is the prevention of vegarancy and to provide the neglected wife and children sustenance in their distress. It is consistent with Article 15(3) and 39 of the Constitution of India. Bala Nair Vs. Bhavani Ammal (1987 Cr.L.J.399). Statutory Provision: The Power of the Court to order maintenance, when proceedings are pending for matrimonial relief has been provided under different statutes. Section 24 of the Hindu Marriage Act; Section 36 of the Special Marriage Act and the Divorce Act and Section 39 of the Parsi Marriage Act speak about alimony pendatelite. Section 25 of the Hindu Marriage Act, section 40 of the Parsi Marriage Act and Section 37 of the Special Marriage Act and Divorce Act, provides for permanent alimony and maintenance.
Section 85 of the Mohamedan Law states that the wife may get maintenance in accordance with the provisions of Section 125 of the Code of Criminal Procedure. This is to ensure that a derelict Muslim husband cannot take umbrage under his personal law in order to defeat these statutory obligations under the code of Criminal procedure. Ameer Amanullah Vs. P.Maniam Beevi (1985 (1) MLJ (Cri) 164 Code of Criminal Procedure: Section 125 of the Code of Criminal Procedure reads as follows: (1) If any person having sufficient means neglects or refuses to maintain(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or person to make a monthly allowance for the maintenance of his father or mother, at such monthly rate, as such Magistrate thinks same to such person as the Magistrate may from time to time direct
refusal, order such wife or such child, fit, and to pay the :
This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not being a married daughter) who has attained majority, where such child by reason of any physical or mental abnormality or injury unable to maintain itself or a person's father or mother unable to maintain himself or herself. From the reading of the section it is clear that a person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in a Civil Court, this Section is provided to get maintenance as early as possible. For a person, food, clothing and shelter is essential. While ordering maintenance, Court has to consider whether the wife is living separately on reasonable grounds. The wife can refuse to live with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance from her husband under this Section if she is living in adultery, or husband and wife are living separately by mutual consent. The petitioner can file any number of petitions under Section 125 Cr.P.C for enhancement of maintenance when the circumstances change. The Court after considering the change of circumstances can enhance the maintenance accordingly. Originally a magistrate can order Rupees 500 per month as maximum maintenance. After the recent amendment maintenance exceeding Rs.500 can be ordered according to the circumstances of each case. Wives right to maintenance is not absolute under 125 of the Code. It is Circumscribed by the fact that she is unable to maintain herself and further the husband having sufficient means neglected or refused to maintain her. No doubt, there is a clear distinction between the locus standi or competence to file a petition for maintenance under Section 125 of The Code by any of the persons illustrated in the Section and their being entitled on merits to particular amounts of maintenance thereunder. However,
the premises for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated in the Section. K.M.Nagammalappa Vs. B.J.Lalitha, 1985 Cr.L.J 1706 (KANT) See also Hyma Krishnadass Vs. M.Krishnadass, 1985 (2) CRIMES 661 (KER), Habeebulla Vs. Shakella, 1984 Cr.L.J 1062. Quantum of Maintenance Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956. The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said observation by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc.. While fixing the amount of maintenance, the Court should also take into account considering the inflation and cost of living and his obligation to support the minor child and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699). There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is only the independent income of the payee which is to be considered. While granting relief of permanent alimony, the court has to keep in view the following considerations: i) Husband's ii) Income of the iii) Income iv) Conduct of parties.
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Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab) In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the Hindu Marriage Act. Enforcement: After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this Section unless applications made to the Court to levy such amount within a period of one year it became due. Proceedings under Section 125 Cr.P.C is considered to be of a civil nature. Though they are wholly governed by
the procedure of the code of criminal procedure, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order. Pandharinadh Sakharam Thuve Vs. Surekha Pandharinadh Thuve, 1999 Cr.L.J 2919 (BOM). It is to be borne in mind that a petition filed under Section 125 Cr.P.C is not a complaint and the person arrayed as the opposite party is not an accused. Following the decision of the Supreme Court in AIR 1963 SC 1521, which held that instant proceedings under 125 Cr.P.C is a proceedings of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceedings of this nature, provided, sufficient grounds are shown. SK.Alauddin Vs. Khadizebb, 1991 Cr.L.J 2035. Hindu Law Text enjoins upon the husband a mandatory duty to maintain his wife. The duty to maintain is dehors his possession of any property. A decree for maintenance creates a charge on his property. IN Raghavan Vs. Nagammal (AIR 1979 Mad 200) the High Court of Madras held that an order of maintenance, in term of Section 39 of the Transfer of property Act, creates a charge on the property Act. This principle was extended to an order passed under Section 125 Cr.P.C. in Diwakaran Vs. Barghavy Chellamma (1985 (2) DMC 486). Apart From the above, Section 125 (3) of the Cr. P.C. r/w Section 128 of the Cr.P.C. empowers the Magistrate to enforce the execution in case of default by the person ordered to pay maintenance. Section 51 of the C.P,.C. can also be utilised for enforcing the order of maintenance. Validity of Marriage Validity of the marriage for the purpose of summary proceedings under Section 125 Cr.P.C is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of a marriage in such proceedings is not as strict as is required in a trial of offences under Section 494 IPC. If the claimant in proceedings under Section 125 of The Code succeeds in showing that she and the respondent have lived together as husband and wife the Court can presume that they are legally wedded spouses, and in such a situation the party who denies the marital status can rebut the presumption. Undisputedly marriage procedure followed in the temple, that too, in the presence of the idol of Lord Jaganath, which is worshiped by both the parties is considered to be valid. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe in to whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 Cr.P.C. Dwarika Prasad Satpathi Vs. Bityut Prava Dixit, (1999) 7 SCC 675 = 1999 (4) CRIMES 206 = 2000 Cr.L.J 1, See also Raju Vs. Pushpa Devi, 1999 Cr.L.J 2294. The High Court of Bombay in K.M. Vyas Vs. R.K.Vyas (AIR 1999 Bom 127) held that the second wife is entitled to get maintenance under Section 24 of the Hindu Marriage Act even if the Second Marriage of the husband is void. In Devinder Singh Vs. Jaspal Kaur (1999 (1) MDM (535) the Punjab and Hariyana High Court held that the Right to claim maintenance under Section 25 of the Hindu Marriage Act is not defeated even where the marriage is dissolved by a Decree of Nullity. In Malika Vs. P.Kulandai (2001 (1) DMC 354) the court held that when the husband contracted the Second marriage by suppressing the fact of the first marriage, the wife and child are entitled to maintenance under Section 125 of the Cr.P.C. Recent Trends:The Apex Court in Komalam Amma Vs. Kumarapillai (2008(14)SCC 345) held that the Hindu Wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence,if by reason of the
husband's conduct or by his refusal to maintain her in his own place of residence or other just cause she is compelled to live apart from him. Right to Residence is part and parcel of wife's right to maintenance. The Right to Maintenance cannot be defeated by the husband executing a will to defeat such right..... For the purpose of maintenance the term "Wife" includes Divorced Wife. The said court in Sipra Bhattacharyya's case (2009 (4) SCC 366), has held that the tiral court is duty bound to dispose of the Appliction for maintenance before the suit for Divorce is decided and that too within a time frame. In Rajesh Varman's case (2009 (1) SCC 398) the said court held that the term maintenance and support are comprehensive in nature and of wide amplitude and they would take within their sweep medical expenses. However, in Vimalaben Ajithbai Patel's case (2008 (4) SCC 649) the court held that the mother-in-law cannot be fastened with any legal liability to maintain her daughterin- law from her own property or otherwise. A wife is only entitled to maintenance from her husband. The recent trend feathering the concept of "live-in" and same sex relationships has created the need to extend maintenance in such relationship also. In Western Countries unmarried relationships and same sex relationships have been recognized by statutes and judicial notice has been taken by courts. The dependent partner in such relationship have been held entitled to support which is termed as "Palimony". The said concept of unmarried relationship is gaining momentum amongst the youth in India also. Consequently, it would be essential to protect the dependent partner if the relationship is broken. Conclusion;The changing pattern in human thought and attitude has resulted in not only recognizing but also accepting the abnormality existing within the normal nature in human beings. The courts and the Legislature in various countries have recognized the abnormality as a factor which has to be addressed to by the society. Consequently the Right to Maintenance will have to be addressed by giving it a more expansive amplitude. However, under the current situation the impediment in enforcing this social legislation lies in the defence which the husband may take. The defence of matrimonial wrong being decided as a precondition adds to the inordinate delay in disposing of the cases and thus has resulted in denying the benefits of the legislation to the dependent spouse. Most often the deprived partner is unable to sustain the protracted legal battle in the courts of law. The enforcement machinery is inadequate and often the deprived person has to approach the court for execution so that the amount ordered is paid. It is essential that the courts should be empowered to dispose of the Right to Maintenance on a Fast Track so that this social legislation is enforced both in letter and spirit.
Maintenance Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent
parents and divorced wives. Claims of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons was limited to Rs. 500 per month. But, this limit was removed by the Code of Criminal Procedure (Amendment) Act, 2001 (No. 50 of 2001). Inclusion of the right of maintenance under the Code of Criminal Procedure has the advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the customary personal law are not entitled to claim maintenance under the Code of Criminal Procedure. Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. Justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto. This Act, inter alia, provides that a divorced Muslim woman shall be entitled to:
Reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband Where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and All property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat, the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property
and at such periods as he may specify in his order. Where such divorced woman has children, the magistrate shall order only such children to pay maintenance to her and in the event of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him. The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by the court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried. The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi Law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
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Divorce in Islam: Lal Mohd Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in Islam. After solemnization of marriage between parties, if some problems arise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid. Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq. The main points in his article were: Talaq and divorce are strongly condemned within Islam.
In case of difficulties within a marriage that the husband and wife cannot solve by themselves, each shall appoint an arbitrator or conciliator to resolve the matter. ( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation." TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended. Caliph Umer legitimized this form of divorce as an emergency measure. Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach of the marriage.
The triple pronouncement of TALAQ nations, including Turkey, Tunisia, Bangladesh. India still permits it." councils and judicial interventions reconciliation.
has been "...banned by law in many Algeria, Iraq, Iran, Indonesia, and 1 In all such countries arbitration have been introduced to promote
Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile the couple. When all efforts fail, the matter is referred for investigation and later to the court for a trial. I hope that people of the Islamic faith will learn from the above discussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an and Sunna (Observing the path) of Prophet Mohammad. May peace be upon Him and on us of Almighty ALLAH ! Ameen.
Concept of Marriage and Divorce under Muslim Law Marriage or "Nikah" in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the "Nikah" Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration. There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have sexual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery. The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations,
impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.
Muslim Marriage Laws Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the society of other without lawful ground. No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of judicial separation. No provision in Mohammedan Law for declaration of marriage as nullity for it can be annulled, though it may be repudiated by a Muslim wife and husband. Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement). Section 2 of the Dissolution of Muslim Marriage Act, 1939 Grounds for Muslim Woman. 1. Not heard for 4 years. 2. Failure to provide maintenance for two years. 3. Husband sentenced for 7 years imprisonment or upwards. 4. Failure to platform martial obligations for three years. 5. Impotency at the time of marriage and continuation. 6. Insanity for two years or suffering from leprosy or a virulent venereal
disease. Marriage before attaining age of 15 years and repudiation before attaining the age of 18 years. 8. Cruelty in the form of habitually assaulting, associating with women of evil repute, force to lead an immoral life, interfering into the wife’s property, obstruction to observe her religious practice, not equally treating with other wives etc., 7.
Dissolution of Muslim Marriages Act, 1939
An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by woman married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by married Muslim woman on her marriage tie; it is hereby enacted as follows: 1. Short title and extent: 1. This Act may be called the Dissolution of Muslim Marriages Act, 1939. 2. It extends to the whole of India except the State of Jammu and Kashmir. 2. Grounds for decree for dissolution of marriage - A woman married under
Muslim law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:
that the whereabouts of the husband have not been known for a period of four years; that the husband has neglected or has failed to provide for her maintenance for a period of two years; that the husband has been sentenced to imprisonment for a period of seven years or upwards; that the husband has failed to perform , without reasonable cause , his marital obligations for a period of three years; that the husband has impotent at the time of the marriage and continues to be so; that the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease; that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years., repudiated the marriage before attaining the age of eighteen years; Provide that the marriage has not been consumated;
that the husband treas her with cruelty, that is to say.— habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment, or b. associates with women of evil repute or leads an infamous life, or c. attempts to force her to lead an immoral life, or d. disposes of her property or prevents her exercising her legal rights over it, or e. obstructs her in the observance of her religious profession or practice, or f. if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran; a.
on any other ground which is recognised as valid for the dissolution of marriages under Muslim law; Provide that— no decree shall be passed on the ground (iii) until the sentence has become final; b. a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and c. before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground. a.
3. Notice to be served on heirs of the husband, when the husband’s whereabouts are not known In a suit to which clause (i) of Section 2 applies-the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint. a.
Notice of the suit shall be served on such persons, and
b.
Such persons shall have the right to be heard in the suit;
Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs. 4. Effect of conversion to another faith - The renunciation of Islam by a
married muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage : Provide that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith. 5. Right to dower not to be affected - Nothing contained in this Act shall affect
any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage. 6. Repeal of Section 5 of Act 26 of 1937 - Repealed by the Repealing and Amending Act, 1942 (25 of 1942) Sec. 2 and Sch. i.
Divorce Under Muslim Marriage Act India Divorce By Husband / Wife
A Husband may divorce in the following manner
Talaq: which is release from the marriage tie immediately or eventually. Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife. Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner:
Talaqetafwiz: talaq by the wife under the husbands delegated power. Divorce By Judicial Decree Under Dissolution Of Muslim Marriage Act 1939.
Following are the grounds on which a marriage maybe dissolved under
the Marriage Act.
Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure. Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.
Womans Right To Divorce Under The Dissolution Of Muslim Marriage Act. 1939 A Muslim woman may file for divorce on the following grounds:
That the whereabouts of the husband have not been known for a period of 4 years That the husband has neglected or has failed to provide for her maintenance for a period of two years. That the husband has been sentenced to imprisonment for a period of seven years or upwards. That the husband has failed to fulfill his marital obligation for a period of three years. That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease. That the husband was impotent at the time of marriage and continues to be so.
The women, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.
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Personal Law The people of India belong to different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc.
Marriage Law relating to marriage and/or divorce has been codified in different enactments applicable to people of different religions. These are:
The Converts' Marriage Dissolution Act, 1866 The Indian Divorce Act, 1869 The Indian Christian Marriage Act, 1872 The Kazis Act, 1880 The Anand Marriage Act, 1909 The Indian Succession Act, 1925 The Child Marriage Restraint Act, 1929 The Parsi Marriage and Divorce Act, 1936 The Dissolution of Muslim Marriage Act, 1939 The Special Marriage Act, 1954 The Hindu Marriage Act, 1955 The Foreign Marriage Act, 1969 and The Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir. Persons governed by this Act can specifically register marriage under the said Act even though they are of different religious faiths. The Act also provides that the marriage celebrated under any other form can also be registered under the Special Marriage Act, if it satisfies the requirements of the Act. The section 4(b) (iii) of the Act was amended to omit the words "or epilepsy.'' Sections 36 and 38 have been amended to provide that an application for alimony pendente lite or the maintenance and education of minor children be disposed of within 60 days from the date of service of notice on the respondent. An attempt has been made to codify customary law which is prevalent among Hindus by enacting the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955, which extends to the whole of India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in territories to which the Act extends and those who are outside the said territories. It applies to Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion. However, the Act does not apply to members of any scheduled tribes unless the Central Government by notification in the official Gazette otherwise directs. Provisions in regard to divorce are contained in section 13 of the Hindu Marriage Act and section 27 of the Special Marriage Act. Common ground on which divorce can be sought by a husband or a wife under these Acts fall under these broad heads: Adultery, desertion, cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive for seven years. As regards the Christian community, provisions relating to marriage and divorce are contained in the Indian Christian Marriage Act, 1872 and in section 10 of the Indian Divorce Act, 1869 respectively. Under that section the husband can seek divorce on grounds of adultery on the part of his wife and the wife can seek divorce on the ground that the husband has converted to another religion and has gone through marriage with another woman or has been guilty of:
Incestuous adultery Bigamy with adultery Marriage with another woman with adultery rape, sodomy or bestiality Adultery coupled with such cruelty as without adultery would have entitled her to a divorce, a mensa etoro (a system of divorce created by the Roman Catholic Church equivalent to judicial separation on grounds of adultery, perverse practices, cruelty, heresy and apostasy) and Adultery coupled with desertion without reasonable excuse for two years or more.
In the Indian Divorce Act, 1869 comprehensive Amendments were made through the Indian Divorce (Amendment) Act, 2001 (No. 51 of 2001) to remove discriminatory provisions against women in the matter of Divorce. Further, sections 36 and 41 of the Act were amended by the Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony pendente lite or the maintenance and education of minor children be disposed of within 60 days from the date of service of notice on the respondent. As regards Muslims, marriages are governed by the Mohammedan Law prevalent in the country. As regards divorce, i.e., Talaq, a Muslim wife has a much restricted right to dissolve
her marriage. Unwritten and traditional law tried to ameliorate her position by permitting her to see dissolution under the following forms:
Talaq-I-Tafwid: This is a form of delegated divorce. According to this, the husband delegates his right to divorce in a marriage contract which may stipulate, inter alia, on his taking another wife, the first wife has a right to divorce him Khula: this is a dissolution of agreement between the parties to marriage on the wife's giving some consideration to the husband for her release from marriage ties. Terms are a matter of bargain and usually take the form of the wife giving up her mehr or a portion of it, and Mubarat : this is divorce by mutual consent.
Further, by the Dissolution of Muslim Marriage Act, 1939, a Muslim wife has been given the right to seek dissolution of her marriage on these grounds:
Whereabouts of the husband have not been known for a period of four years Husband is not maintaining her for a period of two years Imprisonment of husband for a period of seven years or more Failure on the part of husband to perform his marital obligations, without a reasonable cause, for a period of three years Impotency of husband Two-year long insanity Suffering from leprosy or virulent venereal disease' Marriage took place before she attained the age of 15 years and not consummated and Cruelty.
The Parsi Marriage and Divorce Act, 1936 governs the matrimonial relations of Parsis. The word 'Parsi' is defined in the Act as a Parsi Zoroastrian. A Zoroastrian is a person who professes the Zoroastrian religion. It has a racial significance. Every marriage as well as divorce under this Act is required to be registered in accordance with the procedure prescribed in the Act. However, failure to fulfil requirements on that behalf does not make marriage invalid. The Act provides only for monogamy. By the Parsi Marriage and Divorce (Amendment) Act, 1988, scope of certain provisions of the Parsi Marriage and Divorce Act, 1936 have been enlarged so as to bring them in line with the Hindu Marriage Act, 1955. Recently, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936 were amended by the Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony pendent lite or the maintenance and education of minor children be disposed of within 60 days from the date of service of notice on the wife or the husband as the case may be. As for the matrimonial laws of Jews, there is no codified law in India. Even today, they are governed by their religious laws. Jews do not regard marriage as a civil contract, but as a relation between two persons involving very sacred duties. Marriage can be dissolved through courts on grounds of adultery or cruelty. Marriages are monogamous.
Child Marriage The Child Marriage Restraint Act, 1929, from 1 October 1978, provides that marriage age for males will be 21 years and for females 18 years.
Adoption
Although there is no general law of adoption, it is permitted by the Hindu Adoption and Maintenance Act, 1956 amongst Hindus and by custom amongst a few numerically insignificant categories of persons. Since adoption is legal affiliation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and have to approach the court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all this connections. Besides, such a child does not have the legal right of inheritance. Foreigners, who want to adopt Indian children, have to approach the court under the aforesaid Act. Hindu law relating to adoption has been amended and codified into the Hindu Adoptions and Maintenance Act, 1956, under which a male or female Hindu having legal capacity, can take a son or daughter in adoption. In dealing with the question of guardianship of a minor child, as in other spheres of family law, there is no uniform law. Hindu Law, Muslim Law and the Guardians and Wards Act, 1890 are three distinct legal systems which are prevalent. A guardian may be a natural guardian, testamentary guardian or a guardian appointed by the court. In deciding the question of guardianship two distinct things have to be taken into account-person of the minor and his property. Often the same person is not entrusted with both. The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority and guardianship. As in the case of uncodified law, it has upheld the superior right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first the father and then the mother. Prior right of mother is recognised only for the custody of children below five. In case of illegitimate children, the mother has a better claim than the putative father. The act makes no distinction between the person of the minor and his property and therefore guardianship implies control over both. Under the Muslim Law, the father enjoys a dominant position. It also makes a distinction between guardianship and custody. For guardianship, which has usually reference to guardianship of property, according to Sunnis, the father is preferred and in his absence his executor. If not executor has been appointed by the father, the guardianship passes on to the paternal grandfather to take over responsibility and not that of the executor. Both schools, however, agree that father while alive is the sole guardian. Mother is not recognised as a natural guardian even after the death of the father. As regards rights of a natural guardian, there is no doubt that father's right extends both to property and person. Even when mother has the custody of minor child. Father's general right of supervision and control remains. Father can, however, appoint mother as a testamentary guardian. Thus, though mother may not be recognised as natural guardian, there is no objection to her being appointed under the father's will. Muslim law recognises that mother's right to custody of minor children (Hizanat) is an absolute right. Even the father cannot deprive her of it. Misconduct is the only condition which can deprive the mother of this right. As regards the age at which the right of mother to custody terminates, the Shia school holds that mother's right to the Hizanat is only during the period of rearing which ends when the child completes the age of two, whereas Hanafi school extends the period till the minor son has reached the age of seven. In case of girls, Shia law upholds mother's right till the girl reaches the age of seven and Hanafi school till she attains puberty.
The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890. It clearly lays down that father's right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act.
Maintenance Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claims of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons was limited to Rs. 500 per month. But, this limit was removed by the Code of Criminal Procedure (Amendment) Act, 2001 (No. 50 of 2001). Inclusion of the right of maintenance under the Code of Criminal Procedure has the advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the customary personal law are not entitled to claim maintenance under the Code of Criminal Procedure. Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. Justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto. This Act, inter alia, provides that a divorced Muslim woman shall be entitled to:
Reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband Where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and All property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat, the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her
marriage and means of such relatives and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order. Where such divorced woman has children, the magistrate shall order only such children to pay maintenance to her and in the event of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him. The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by the court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried. The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi Law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Succession The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large number of laws which were in existence at that time. Laws governing succession to Muslims and Hindus were excluded from the purview of the Act. While consolidating the law in respect of succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating to succession rights or Parsis, were adopted. In the first scheme, applying to those other than Parsis, in the case of a person dying intestate leaving behind a widow and lineal descendants, the widow would be entitled to a fixed share of one-third of property and lineal descendants shall be entitled to the remaining two-third. This law was amended subsequently with the object of improving rights of widows and it was provided that where the intestate dies leaving behind his widows and it was provided that where the intestate dies leaving behind his widow and no lineal descendant and the net value of the estate does not exceed Rs 5,000, the widow would be entitled to the whole of this property. Where the net value of the estate exceeds Rs 5,000 she is entitled to charge a sum of Rs. 5,000 with interest at four per cent payment and in the residue, she is entitled to her share. The Act imposes no restriction on the power of a person to will away his property. Under the second scheme, the Act provides for Parsi intestate succession. By the Indian Succession (Amendment) Act, 1991 (51 of 1991), the Act was amended to provide equal shares for both sons and daughters in their parental properties, irrespective of the fact that it
was that of the father or that of the mother. It also enables the Parsis to bequeath their property to religious or charitable purposes, etc., without any restrictions. In effect the amended law provides that where a Parsi dies intestate leaving behind a widow or widower as the case may be, and children, the property shall be divided so that the widow or widower and each child receives equal share. Further, where a Parsi dies leaving behind one or both parents in addition to children, or widow widower and children, the property shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child. This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that section 32 of the principal Act is discriminatory to widows and as such the proviso to section 32 was omitted to remove discrimination in this regard. Section 213 was also amended by this amending Act to make Christians at par with other communities. The law relating to intestate succession among Hindus is codified in the Hindu Succession Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir. The remarkable features of the Act are the recognition of the right of women to inherit property of an intestate equally with men and abolition of the life estate of female heirs. A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that Muslims are governed by Hanafi law unless it is established to be the contrary. Though there are many features in common between Shia and Sunni schools, yet there are differences in some respects. Sunni law regards Koranic verses of inheritance as an addendum to preIslamic customary law and preserves the superior position of male agnates. Unlike Hindu and Christian laws, Muslim law restricts a person's right of testation. A Muslim can bequeath only one-third of his estate. A bequest to a stranger is valid without the consent of heirs if it does not exceed a third of the estate, but a bequest to an heir without the consent of other heirs is invalid. Consent of heirs to a bequest must be secured after the succession has opened and any consent given to a bequest during the lifetime of the testator can be retracted after his death. Shia law allows Muslims the freedom of bequest within the disposable third. Source: National Portal Content Management Team Reviewed on: 10-02-2011 8ae5dce9bbb820
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Home » Dossier 22
Dossier 22: Post Divorce Maintenance for Muslim Women and the Islamist Discourse in
Dossier Articles
South Asia
Bangladesh
Fundamentalisms
[law] Women and Law - WLUML Programme Publication Author: Dr Faustina Pereira Date: January 2000 Attachment
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number of pages: 168 ISBN/ISSN: 1560-9677 Introduction
We live in an era where relativism and humanism affect almost every facet of our lives. Not least among these facets is the discourse of Islam vis a vis women’s human rights. The importance of such factors as relativism, humanism and gender sensitivity has not come about in a vacuum. It is fairly easy to find in the history of the evolution of the Shari’a, both ancient and recent (despite what the champions of the theory of the “closed doors of ijtihad” propound), many useful examples where many welcome and significant interpretation and interventions have taken place. Unfortunately, however, only a handful of women interpreters have been active participants in this evolutionary process. The dearth of women Islamists up until today point out that women are the
subject of the Shari’a but not its legislators.[1]
Bangladesh, through some of its progressive judicial decisions has come on and off into the limelight of the discourse on Islam and women’s human rights.[2] I would take the liberty to term “progressive” decisions as those which add to and complement, rather than take away, rights of women in order for them to live as complete, independent individuals as understood by the Constitution of Bangladesh and various international human rights instruments, particularly the Universal Declaration of Human Rights and the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women). Within the judicial arena a Matter of crucial importance today for Muslim women around the world and in Bangladesh is the question of Muslim women’s entitlement to maintenance from their husbands after their divorce.
Maintenance Under Muslim Law and the Divorced Woman
It is unanimously agreed among Muslim scholars and jurists that the woman’s right to maintenance arises upon marriage and that the wife is first in order of priority to this entitlement, even before the children, parents and relatives. What is not so readily agreed upon however, is whether this right is extendable after the marriage ends. It is the contention of a good number of exponents of Islamic law that it is.[3]
A constructive meshing of the several views that exist on this point would help lawyers, jurists and scholars to arrive at an agreeable plateau on the concept of post-divorce maintenance for divorced Muslim women. A common point of departure for some experts on this issue is the meaning of the term “mataa” or “mut`ah.”
Mataa/Mut'a, The Qur’an and the Principles of Justice and Reason
Literally taken, the word “mut’a” is “gratification” or “a gift.”[4] It has two distinct senses, one
being a form of temporary marriage, the other, in referring to mut’at al-talaq or nafaqat al mut’a, is a payment by a husband to his wife upon divorcing her.[5] Whether this “gratification,” “gift” or “payment” has been intended as real compensation or simply a consolation to a divorced wife, and if so, whether such compensation and or consolation is compulsory, has been a matter of contention in classical and contemporary jurisprudence.
The Qur’an makes specific reference to provision for divorced women by way of maintenance. This is in Sura II (Baqara), Verse 241.[6] However, in order to fully appreciate this provision, we need to read the preceding and following verses along with this verse, and not in isolation from them, as is the practice among some scholars. Verse 240 lays down the provisions for widows (a year’s maintenance and residence), and then mentions women who leave the matrimonial residence on their own. After this comes the provision for women who have not left on their own, that is, those who have been divorced. The verse immediately after this provision, (242), begins “Thus doth God make clear his signs...” making it clear that it is a continuation of the theme of the previous verse (which specifies maintenance for divorced women). Therefore, on the one hand, the Qur’an is making a specific provision, on the other hand is also reminding us that God continuous to provide us signs for guidance so that we may comprehend and behave accordingly. A simple reading of the Qur’an shows that the various stages a divorce takes place have been covered. Dissolution of marriage, according to Muslim law, comes about in two ways: death or divorce. A simple reading of Verses 240 and 241 show that the Qur’an has made provision for women who suffer either widowhood or divorce. Whatever discussion takes place as to the nature of this provision, it cannot discard the simple meaning of these two verses. The Qur’an, by reminding us that God provides us signs to understand, also helps us to conduct our journey of interpretation and contextualisation. Surely this understanding ought be based on the precepts of justice, reason and sustenance of the spirit of the Qur’an. Here we may want to remind ourselves of the observations made in the Report of the Commission on Marriage and Family Laws,[7] “Islam very justly claims to be a simple and liberal creed... . The Quran says that previous societies perished because they were burdened with too much inflexible law and too much unnecessary ritual... . No progressive legislation is possible if
Muslim assemblies remain only interpreters and blind adherents of ancient schools of law.”[8]
Despite what this Commission had to say in 1956, and before that prior to the Dissolution of Muslim Marriages Act in 1939 (where the Maliki School, rather than the Hanafi School of law was adopted), today most of the discussion on post divorce maintenance, which should have been fairly easy to garner from the Qur’an in the first place, has been filtered to whether mataa is optional or obligatory, whether it is a gift or a compensation. The 1956 Commission, on questioning its members and hundreds of Muslims, whether husbands should pay maintenance to the divorced wife for life or till her remarriage, part of the answer reads, “ a large number of middle aged women who are being divorced without rhyme or reason should not be thrown on the street without a roof over their heads and without any means of sustaining themselves and their children.”[9]
South Asia, Mataa and Judicial Decisions
The discourse on mataa and its import on maintenance and women’s rights under family law, is not new in our sub-continent. Only recently in Pakistan a case1[10] raised the question whether the wife’s maintenance is a gratuity. I have already stated above that the 1956 Commission on Marriage and Family Law took into consideration the plight of women arbitrarily divorced and rendered destitute, and recommended that Courts should have the jurisdiction to order a husband to pay maintenance to his divorced wife for her life or till she remarried.
Looking back into our history, it is clear to see that there was never really a forum in which these questions could be argued. More than a century ago, the Calcutta High Court, in the case of Abdur Rohoman vs. Sakhina,[11] finding itself unable to sanction enforcement of a maintenance order issued in favour of a Muslim divorced wife, observed, “The fact that the power of divorce, given by
the Muhammadan law, may be so exercised as to defeat the intention of the legislature as expressed in... [The Presidency Magistrates Act] and other similar enactments, may go to show that further legislation is required, but it cannot affect the [secular, statutory] law as it stands.” It is clear to see that the magistrate’s court did not have the authority to decide cases according to Muslim law. It may be argued that these issues could be raised in ordinary civil courts. But civil suits do not help the poor, divorced women who desperately need monetary sustenance for themselves and their children, instead of complicated, expensive and time consuming proceedings.
Prior to the Muslim Family Laws Ordinance on 1961, Hanafi Muslim women had no forum to raise the question of recovery of arrears of maintenance. Under this Ordinance, the Arbitration Council formed could and did deal with the question and found in favour of women’s claims. However, we must note that the Ordinance, despite what was recommended by the 1956 Commission, only comprehended maintenance for married women, and not mataa for divorced women. It has already been pointed out that jurists are in agreement that it is permissible to follow a non-Hanafi school when Hanafi law does not provide relief. This is how our 1961 Ordinance came to be based on Maliki law. Thus today cases coming before Bangladeshi courts should not have a difficulty in finding a forum to provide relief to divorced women. For example, in Gul Bibi v. Muhammad Saleem[12] the argument was based on justice and common sense and the position that it is possible to borrow from another school of Muslim law when one school does not provide relief. Thus the Court held “According to Shiah and Shafi law the wife is entitled to maintenance notwithstanding the fact that she was allowed to get into arrears without having the amount fixed by the Court, or by agreement with the husband...
In the instant case the parties admittedly follow Hanafi school of thought... However, as some thinkers of Islam do favour the positive view and such view is also consistent with reason, logic and common sense, its adoption as a rule in case of such sects which do not strictly follow that school of thought, would not be unjustified.”
Today we have the Family Courts Ordinance of 1985, which not only has a streamlined procedure but also under which women have to pay only their minimal fees. Now that the question of mataa - post divorce maintenance, has been raised before the Appellate Division of Bangladesh, we can be hope that the question has at last found an appropriate forum for decision.
Some Muslim Majority Countries Where Women Enjoy Mataa Prior to codification, Egyptian personal law had been primarily based on the Hanafi School. Judges found themselves being
forced to apply manifestly unjust rulings in cases of maintenance and divorce.[13] Thus Egypt adopted some of the principles of Maliki and Shafi Schools in cases of maintenance and some other matters. Jordanian Courts consider compensation for divorce a financial right of the divorced wife which is not forfeit in the case of death of the husband.[14] The Egyptian and Jordanian laws determine cases where divorce is by the unilateral will of the husband and not by mutual agreement. Both laws stipulate mataa or mut’a, in addition to maintenance for a divorced women after consummation.
The Malaysian Islamic Family Law as regards post divorce maintenance is established on the Sura II Verse 241.The Islamic Family Law (Federal Territory) Act 1984 provides, in addition to the woman’s right to maintenance, that a woman who has been divorced without just cause by her husband may apply to the Shari’a Court for mut’a and the Court may, after hearing the parties and after being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair according to the hukum syara, which is based on Sura II Verse 241 of the Qur’an.
The Shari’a Courts in Malaysia have rightly highlighted the distinction between the iddah maintenance and mut’a or post divorce maintenance. Many scholars confuse iddah with divorce. In fact, iddah is a continuation of the marriage, being a waiting period during which a divorce pronouncement may be revoked. Thus during this time the husband and wife continue to be within a legally married state and therefore the question of mut’a at this stage does not arise. During the iddah the woman is entitled to maintenance as a wife. It is after the completion of the idda period that the divorce becomes effective and thus the question of post divorce maintenance where the divorce was arbitrarily brought by the husband.
Moreover, although not spelled out, a very logical distinction arises from the Malaysian, Jordanian and Egyptian situation. If the Qur’an has recognized two forms of dissolution (divorce and death) and has provided very important rights (inheritance etc.) to the woman divorced by death, would not it be logical to think that the Qur’an had manifestly intended that the woman divorced during the life time of the husband would also be entitled to some form of compensation? In both cases we are talking about a right which arises upon dissolution. It is therefore redundant whether the spouse divorcing is dead or alive.
Concluding Observations
We must remember that the main reason issues such as maintenance rights for divorced women in particular and reform proposals in personal laws in general, is taking place because Bangladesh, along with several other countries, Muslim and non-Muslim alike, is creating various forums in which these issues beg dealing with. It would be frivolous to say, as some sections of society do, that these issues are now coming up because of western/feminist/un-Islamic influences on our society. Significant sections of the Hanafi ummah have adopted non-Hanafi interpretation of mataa as well as important questions of Muslim women’s rights. Bangladesh, which has a predominance of Hanafi adherents, implements Maliki based Muslim laws too. This by itself should be enough for us to realise that where borrowing from one school would be more consonant with principles of justice, fairness and equity, it would be erroneous not to do so.
FOOTNOTES
[1]The Muted Voices of Women Interpreters, in Faith and Freedom - Women’s Human Rights in the Muslim World 61-77 ( Mahnaz Afkhami, ed., 1995).
[2] See, for example, Nelly Zaman v. Ghiyasuddin, 34 DLR (1982), Jamila Khatun v. Rustom Ali, 48 DLR (1996), Jesmin v. Muhammad Elias, 17 BLD (1997), Muhammad Hefzur Rahman v. Shamsun Nahar Begum, 15 BLD (1995), Muhammad Serajul Islam v. Musammat Helana Begum, 48 DLR.
[3] See, for example, the works on this subject of Dawoud El-Alami, Abdullahi Ahmed An-Na’im, Lucy Carroll, Asghar Ali Engineer, Ahmad Ibrahim, Daniyal Latifi, et al.
[4] Dawoud El-Alami, Mut’at al-Talaq under Egyptian and Jordanian Law, in 2 Yearbook of Islamic and Middle Eastern Law 54 (Cotran and Mallat, eds. 1995).
[5] Ibid.
[6] The Holy Quran, English translation by A. Abdullah Yusuf Ali. Sura II, Verse 240: “Those of you who die and leave widows should bequeath for their widows a year’s maintenance; But if they leave (the residence) there is no blame on you for what they do with themselves, provided it is reasonable. And God is exalted in Power, Wise.” Sura II Verse 241: “For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” Sura II Verse 242 : “Thus doth God make clear His signs to you: in order that ye may understand.
[7] Gazette of Pakistan, Extraordinary, 20 June, 1956.
[8] Ibid., at 1231.
[9] Ibid., at 1215.
[10] Iqbal Hussain v. Deputy Collector, PLD 1995 Lah 381.
[11] ILR 5 Cal 558, 562 (1879).
[12] PLD 1978 Quetta 117.
[13] Supra note ... at 55.
[14] Supra note ... at 58. ‹ Dossier 22: Palestinian women’s model parliamentupDossier 22: The Need for Codification and Reform in Muslim Personal Law in India ›
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Resources: Family laws in Muslim majority and minority contexts This page contains some examples of laws from Muslim countries and communities, whether majority or minority, that support the model Muslim marriage contract. The information is mostly drawn from two publications which are based on research by local legal experts and activists in the Muslim community.
Knowing Our Rights: Women, family, laws and customs in the Muslim world
Home Truths: A Global Report on Equality in the Muslim Family
The topics covered by this page include: 1. Written Marriage Contracts & Registration of Marriage 2. The Right of an Adult Muslim Woman to Contract her own Marriage/the issue of wali 3. Gender Neutral Witnesses to a Marriage 4. Equal Rights and Responsibilities of Husband and Wife in Marriage
5. Giving Wives a Fair Share of Marital Property 6. A Complete Ban on Polygamy 7. Including Talaq-i-Tafwid (delegated divorce) in the Marriage Contract 8. The Rights of the Spouses to Add Other Conditions to the Marriage Contract
1. Written Marriage Contracts & Registration of Marriage The vast majority of women live in situations where women‟s marital rights are not as well protected as men‟s. As the more vulnerable party in a marriage, a woman benefits from documentation of the marriage because it increases her chances of being able to access the inherent rights of a wife in a Muslim marriage as well as any rights the bride may have negotiated with the groom in the marriage contract. With changes in society, earlier mechanisms of social control have broken down: families and communities can no longer bring effective pressure on men who do not respect their wives. Oral promises are nowadays not enough to ensure a smooth marriage. Women who lack marriage documents are even more vulnerable because oral contracts are difficult to enforce: who can prove she was married, when and with what contractual agreements? People move houses and towns, witnesses and the imam who celebrated the marriage are not always easy to trace. In most Muslim countries, a marriage has to be registered and there are penalties such as light prison
sentences and/or fines for failure to register the marriage. For example, in 1974 Bangladesh strengthened the marriage registration laws by passing the Muslim Marriages and Divorces Registration Act. In 2000 in Pakistan, the Federal Shariat Court upheld the registration of marriages as Islamic (Allah Rakha and another vs. Federation of Pakistan and Others PLD 2000 FSC 1). This shows how important marriage registration is in Muslim societies outside Britain. Muslim family laws for example in Bangladesh and Pakistan also regard the person who solemnized the marriage as responsible for registration. The following are some of the countries whose laws require written marriage contracts and registration of marriage: Algeria, Bangladesh, Egypt, Gambia (marriages under Muslim laws), Indonesia, Iran, Malaysia, Morocco, Pakistan, Philippines, Senegal, Sudan, Tunisia, and Turkey.
2. The Right of an Adult Muslim Woman to Contract her own Marriage In Tunisia, under Article 9 of 1956 Code du Statut Personnel (Personal Status Code), both the husband and wife have the right to contract their marriage themselves or appoint proxies, and Article 3 regarding validity does not require the consent of the wali. Under Article 25 of the 2004 Moudawana (Morocco‟s Muslim family law), a woman of legal majority may conclude her marriage herself, or delegate this power to her father or one of her relatives. In other words, both Morocco and Tunisia‟s
laws have made wali optional. The laws that govern Muslims in the following countries do not require a wali at all for an adult Muslim woman getting married: Bangladesh, India, Kyrgyzstan, Pakistan, Senegal, Turkey, Uzbekistan. In Pakistan, the question of whether a Muslim marriage is valid without a wali has often been debated in the courts and the higher courts have consistently over many decades upheld an adult Muslim woman‟s right to choice in marriage. Some of the most prominent cases include Mst. Humera Mehmood vs. The State and Others PLD 1999 Lahore 494 and Hafiz Abdul Waheed vs. Miss Asma Jehangir and Another PLD 1997 Lahore 301. Even in countries where the law requires a wali, there are different interpretations about the wali’s role. For example, in Sudan‟s law a wali is called a vakil and his role is simply as an agent whose duty is to convey the woman‟s wishes. In Malaysia, it is now very common for Muslim judges to authorise marriages opposed by the normal wali if the couple moves to another town. Section 13 of Malaysia‟s Islamic Family Law (Federal Territories) Act 1984 (which was intended as a model for each of Malaysia‟s 13 States) allows dispensation of the wali’s consent in favour of consent by the court if there are valid grounds for dispensation, “after due inquiry in the presence of all parties concerned”. In Azizah vs. Mat (1976) 2 Jurnal Hukum 251, the father of a young woman refused to give his consent to her marriage, wanting her to earn a living first. On her application to the Registrar, he (the Registrar) transferred the marriage guardianship to a wali raja (meaning the court). Her father was allowed to give evidence, and it transpired that his refusal to give
consent was based on the fact that he wanted compensation for maintaining her. The consent to the marriage was given by the court. Most countries do not require a wali if the woman is remarrying.
3. Gender Neutral Witnesses to a Marriage The role of the witnesses is to testify to essentials of the marriage: the age, capacity and consent of the parties, as well as the fixing of mahr and any other agreed conditions to the marriage. In essence the role of the witness is to protect against the violation of rights. ince women are generally the more vulnerable party in a marriage, witnesses are particularly important for them. For example, witnesses should act as a protection against forced marriage by attesting to the age and consent of the spouses. If there is any subsequent dispute about the existence of a marriage, witnesses can attest to the validity of the marriage (or at least to the good faith of one or both of the spouses) so that a woman would be able to retain her economic rights and ensure the legal paternity of her children. Marriage laws and procedural laws for Muslims in the following countries do not specify the religion or gender of witnesses for marriage; they just require two adult witnesses. Article 9 of Algeria’s Code de la Famille (Family Code); Article 2(1) of Indonesia’s Marriage Act and Article 14 of the Compilation of Islamic Laws; Article 13(4) of Morocco’s Moudawana; Article 15 of the Code
of Muslim Personal Law in the Philippines; Tunisia’s Code of Civil Procedure; Article 147(1) of Senegal’s Code de la Famille (Family Code); Turkey’s Civil Code.
4. Equal Rights and Responsibilities of Husband and Wife in Marriage In 2001 Turkey, which is a Muslim-majority country, amended its Civil Code which regulates marriage. The new Civil Code has taken a new approach to the family and women‟s role in the family, and under Article 41, the family is based on equality between the spouses. The old legal approach, which assigned women a legislatively subordinate position in the family, with rights and duties defined in respect to the husband, has been abandoned in favour of an approach that defines the family as a union based on equal partnership. This new approach is reflected in the language of the new Code. The terms „the wife‟ and „the husband‟ are replaced by „the spouses.‟ The new approach to the family is reflected in several other changes as well:
The husband is no longer the head of the family; spouses are equal partners, jointly running the matrimonial union with equal decision-making power);
Spouses have equal rights over the family residence, and deciding where to live;
Spouses have equal rights over property acquired during the marriage;
Spouses have equal rights to enter into work;
Spouses have equal powers to represent the family.
Reforms since 2004 in Morocco, and to a lesser extent
in Algeria in 2005, have focused on rebalancing the marital relationship, ending the gender discriminatory nature of the listed rights and responsibilities. Both laws require the couple to consult mutually on family planning and the running of the household. In the new 2004 Moudawana (family law) of Morocco, spouses have mutual duties and rights, including: cohabitation, mutual fidelity, respect and affection, the preservation of the interests of the family; mutual inheritance; the wife‟s assuming with the husband responsibility for managing household affairs and the children‟s education; consultation on decisions concerning the management of family affairs, children and family planning; good relations with each other‟s relatives. Indonesia is the country with the largest population of Muslims. Its marriage law states that the rights and responsibilities of the wife and husband are “equivalent …in the life of the household and in the social intercourse in society.” Spouses also have a duty of mutual support. In some countries that do not have Muslim family laws but where there is either a majority or very significant minority of Muslims, the law may specify that the spouses have the right to mutual maintenance (as in the Central Asian Republics), or the duties of equally shared consortium which includes shared housework, child care, love, affection and sex, (as in Fiji).
5. Giving Wives a Fair Share of Marital Property Marital property means the goods and property that the couple acquired (whether purchased by one or other
spouse) during the marriage, and any improvements made to the spouses‟ separate property that was done through joint efforts during the marriage. The laws in many Muslim-majority and minority countries often allow a couple to negotiate in the marriage contract how this property is to be controlled during the marriage or divided upon divorce. This is called deciding a „property regime‟. There are different types of arrangements, and a couple should choose one that suits their circumstances (for a detailed discussion, see Knowing Our Rights: Women, family, laws and customs in the Muslim world) Fortunately, Muslim laws in many countries permit this kind of negotiation. For example, Morocco‟s new Moudawana requires the two officials attending the marriage to inform the parties of provisions permitting the specification of a property regime. This is designed to address women‟s ignorance of the possibility of negotiating a property regime. The following are some extracts from the above book about the laws in different Muslim countries regarding property in marriage. Getting a Fair Share: Muslim Women in Singapore In addition to idda maintenance, mata’a (compensation for a divorced wife – see Holy Qur‟an 2:241) and the recovery of mahr, women married under Muslim laws in Singapore are frequently able to recover a substantial share of matrimonial assets, even when they have not contributed to the family‟s income through paid employment. Following amendments to the Administration of Muslim Law Act 1966 (no. 27/66) in 1999, the definition of matrimonial assets was clarified and the factors that the
courts could take into account while deciding the division of these assets was also elaborated. With the 1999 Amendments, the factors that are to be taken into account are (Section 52(8)(a) ADMLA): (a) The extent of contribution made by each party in money, property or work towards acquiring, improving or maintaining the property. (b) Any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage. (c) The needs of the children, if any. (d) The extent of contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependent of either party. (e) Any agreement between the parties with respect to the ownership and division of the property made in contemplation of divorce. (f) Any period of rent free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party. (g) The giving of assistance or support by one party to the other party (whether or not of a material kind) including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business. (h) The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future. (i) The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future. (j) The standard of living enjoyed by the family before the breakdown of the marriage. (k) The age of each party and the duration of the
marriage. (l) Any physical or mental disability of either of the parties, the value to either of the parties of any benefit (such as a pension) which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring. The 1999 Amendment defines matrimonial assets as (Section 52(14) ADMLA): (a) Any asset acquired before the marriage by one party or both parties to the marriage which had been substantially improved during the marriage by the other party or by both parties to the marriage. (b) Any asset of any nature acquired during the marriage by one party or both parties to the marriage. However, this does not include any asset (not being the matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage. Malaysia: Under Section 58 of the Islamic Family Law Act, following divorce the court has power to order the division of assets or the division of the proceeds of the sale of any assets acquired by joint effort of the parties during a marriage. Under Section 58(2), the court must incline toward an equitable division, taking into account: the extent of the contributions made by each party in money, labour, or property toward acquisition of the assets; debts incurred by either party for their joint benefit; and the needs of any minor children of the marriage. Under Section 58(3) and (4), assets acquired by the sole effort of one party to the marriage may also be divided, taking into account: the extent of the contribution to the welfare of the family made by the
party who did not acquire the assets and the needs of any minor children of the family. However, the division must be reasonable, and the party by whose efforts assets were acquired must receive a greater proportion. Under Section 58(5) assets to be divided can include assets owned before the marriage by one party but which have been substantially improved during the marriage by either the other party or by the parties‟ joint effort. Iran: The standard marriage contract includes an optional clause stating that wealth accumulated during the marriage will be divided in half on divorce. Philippines: Article 38 of the Code of Muslim Personal Law provides that in the absence of any other written agreement between the spouses (either made in the marriage contract or subsequently), the couple shall be governed by a complete separation of property regime. Under Article 41, each spouse retains whatever property they brought in to the marriage, all income from employment or trade, any money inherited during the marriage, any income from their personal property, and nuptial gifts; the wife retains her mahr. Under Article 43, each spouse also retains that household property which is customarily used by that spouse. Couples may choose a regime of absolute community of property, which would mean that on divorce all property brought into the marriage and acquired during the marriage is to be divided equally upon dissolution. Morocco: Article 49 of the new Moudawana establishes a separate property regime as the norm but permits the spouses to make a written agreement on the investment and distribution of assets acquired during the marriage. Informing spouses of these provisions is part of the
duties of the adouls (public notaries) present at the marriage. In the absence of such an agreement, recourse is made to general standards of evidence also taking into account the work of each spouse, the efforts made and the responsibilities assumed in the development of the family assets. Turkey: Under Article 186-237 of the Civil Code, a couple has the option of choosing between three different property regimes upon marriage: separation of goods (each party owns the goods and property that are registered in his/her name prior to and throughout the course of the marriage), union of goods (all goods and property owned by each party prior to and during the marriage are considered joint property of the couple); aggregation of goods (through a prenuptial agreement both parties decide upon which goods will constitute the joint property of the couple). Under Article 170, where a couple has not specified a property regime applicable to their marriage union, they are automatically considered to have accepted the separation of goods property regime.
6. A Complete Ban on Polygamy A few Muslim-majority countries have completely outlawed polygamy. These include: Tunisia, Turkey, and Uzbekistan. Algeria‟s considerably amended Code de la Famille (Family Code) and Morocco‟s new Moudawana (Family Law) (Articles 40-46) have both introduced greater regulation, extremely strict in the case of Morocco. New or amended family codes awaiting formal introduction in some francophone West African countries (Benin, Guinea, Mali, Niger) all seek
to regulate polygamy. In Tunisia under Article 18 of the Code du Statut Personnel (Code of Personal Status), any man who contracts a polygamous marriage is punishable with one year of imprisonment or a fine of 240,000 Tunisian francs or both. These provisions apply even if the new marriage is registered and even if the man continues to live with the first wife. A wife who knowingly enters a polygamous marriage is liable to the same punishments. In Bangladesh, a 1999 judgment by the High Court Division strongly discouraged polygamy and ordered that a recommendation be sent to the Law Ministry so that they could scrutinize whether or not polygamy could actually be banned. The recommendation suggested that the same line of reasoning used in Tunisia to ban polygamy could be used in Bangladesh (Elias vs. Jesmin Sultana, 51 DLR (AD) (1999).
7. Including of Talaq-i-Tafwid (delegated divorce) in the Marriage Contract In systems based on Muslim laws, a husband may delegate his unilateral right to talaq to his wife. He still retains his right of talaq but then also permits his wife to pronounce talaq upon herself. This agreement can be made through the marriage contract, or it can be negotiated subsequently. Talaq–i-tafwid is also commonly referred to in Arabic-speaking communities as ‘esma, which simply means „the permission,‟ or „the option‟. In the absence of legislation and social practices that grant women equity and security in their marriages,
talaq-i-tafwid can correct that part of the imbalance in marriage that is caused by a husband‟s power to unilaterally terminate the marriage. Since at least the 16th century, contracts containing talaq-i-tafwid have been recognized in the Indian subcontinent. The topic is thoroughly discussed in local Hanafi texts, and a whole chapter is devoted to this subject in the Fatawa-e-Alamgiri, which was prepared during Mughal Emperor Aurganzeb‟s rule (1658-1707) and promulgated by the Mughal Emperor at that time. The possibility of delegating talaq to the wife is specifically recognized in the Muslim laws of countries such as: Bangladesh, Iraq, Jordan, Morocco, Pakistan, Philippines, and Syria. Other systems may recognize talaq-i-tafwid also if spouses are permitted to negotiate rights through their marriage. Bangladesh & Pakistan: In Bangladesh talaq tafwid procedures are governed by Section 6 of the Muslim Marriage & Divorce Registration Act and in Pakistan by Section 8 of the Muslim Family Laws Ordinance. An optional clause in the standard marriage contract form in both countries asks „whether or not the husband has delegated the power of talaq to the wife, and, if so, under what conditions.‟ India: Although Muslim family laws are not codified (written down) in India, the courts do recognize talaq tafwid. A relevant case is Mangila Bibi vs. Noor Hossain All India Reporter, 1992 Calcutta 92 Philippines: Under Article 51 of the Code of Muslim Personal Law, if the husband has delegated (tafwid) to the wife the right to effect a talaq (at the time of the celebration of the marriage or thereafter), she may
repudiate the marriage and the repudiation would have the same effect as if it were pronounced by the husband himself. Iraq: Divorce terminates the bond of marriage when pronounced by the husband or by the wife who has been assigned or delegated an authority in that regard or by the Qadi. No divorce shall be effective except when pronounced through the legally prescribed formula (The Code of Personal Status of 1959 (amended in 1980), Section 34). Morocco: Under Article 89, the new Moudawana clarifies that procedure for talaq tafwid follows the procedure for talaq and that the court shall rule upon the financial rights of the wife and children as for talaq. A husband cannot prevent his wife from exercising the right of repudiation that he has earlier delegated to her.
8. The Rights of the Spouses to Add Other Conditions to the Marriage Contract Muslim marriage is a contract, and therefore the spouses have the right to negotiate conditions to the marriage, as long as they are not contrary to the meaning of marriage (for example, that the spouses will live separately). This right is recognised in the laws of many Muslim countries and communities. In Muslim communities across the world, couples negotiate a wide range of conditions to the marriage such as levels of maintenance, place of residence, employment options, educational options, freedom to travel or visit relatives, division of household responsibilities, standards of living, breastfeeding
options, control of property, restrictions on polygamy, access to divorce, and standards for the husband‟s emotional treatment of the wife. Women may negotiate where they will live to ensure that they will not have to live far away from their families. They can also ensure that the couple will live separately from the husband‟s family (as is often negotiated in Saudi Arabia). For example, spouses may negotiate the terms of study for both partners and include in these further conditions to accommodate the time and resources required for their studies (Egypt, Jordan). Negotiating household responsibilities can help to ensure an equitable sharing when both partners are employed. Negotiations on this issue may also serve to address and challenge assumptions regarding gender roles in the household. In Saudi Arabia negotiations occur amongst the men, but there is significant room for the mothers and the bride to intervene, and negotiations are vigorously and seriously attended to. In Egypt the bride is party to the negotiations and can give significant input into the process. In contexts where negotiations take place long before the wedding, rather than actually at the time of the marriage ceremony, there may be more space for negotiators to address controversial conditions and convince any unwilling party. This does not, however, prevent others from obstructing the agreed conditions at the last moment. It is not uncommon for imams who are solemnizing a marriage to ignore or object to conditions that the couple and their families have agreed to. Most negotiations occur prior to a marriage. However, it is socially or legally possible for new conditions to be
attached to an existing marriage contract, provided these are written (as opposed to oral) and attested to by witnesses. The following are some extracts from Knowing Our Rights: Women, family, laws and customs in the Muslim world, about the laws in different Muslim countries regarding conditions in the marriage contract. Bangladesh & Pakistan: The standard marriage contract under the Rules of the MFLO carries provisions for talaq tafwid and allows the couple to enter any restrictions on the husband‟s right of divorce (columns 18 & 19). There is no restriction on including any additional conditions, provided there is mutual agreement between the two parties. Column 17 allows for any special conditions. Column 20 allows for recording the details of any other documented stipulations relating to dower, maintenance, wife‟s pocket money, etc. Case law establishes which conditions can be negotiated. Custody of children may be negotiated, but no such negotiation will have legal effect, as the court will decide custody on the basis of the child‟s welfare (rather than on the basis of contractual conditions). In Pakistan courts may accept contractual stipulations even when these deviate from traditional Muslim jurisprudence. For example, if lifelong maintenance for a divorced wife has been incorporated as a stipulation in the marriage contract, courts have supported the wife‟s right to such maintenance. In one famous preIndependence case (which is still applicable in Bangladesh, India, and Pakistan), the court ruled that „the marital rights ended with the divorce, but the contract subsists until the plaintiff dies or breaks it‟
(Muhammad Muinuddin vs. Jamal Fatima, 1921, 43 All.650). Iran: Article 1119 of the Civil Code allows either spouse to negotiate conditions to the marriage contract, provided the conditions do not go against the principles of marriage, and the standard marriage contract has room for additional conditions such as unconditional talaq tafwid. It is not legally valid to impose conditions that the law assumes encroach on the rights of third parties. For example, custody of children is thought to be the right of paternal grandfathers, as well as parents, and therefore, a wife cannot validly negotiate custody (in the event of dissolution) through her marriage contract. The standard marriage contract form introduced in 1987 contains 11 conditions under which the wife has access to talaq tafwid. These conditions are all related to some failure of or defect in the husband and include: his failure to pay maintenance; his failure to perform sexual obligations, his failure to reproduce, his failure to behave morally, his becoming insane, his developing a life-threatening disease, his imprisonment, his disappearance, and his failure to treat his wife justly. Both spouses sign each clause of the contract, signifying their acceptance of the agreed terms and conditions. The contract also offers the option that wealth accumulated during the marriage may be divided in half in the event of divorce. The wife benefits from these conditions only if she is not found to have failed in observing her obligations, specifically her obligation to „obey‟ her husband. Malaysia: Although the Islamic Family Law Act does not specifically recognise the possibility of negotiating the terms and conditions of a marriage contract, it does recognize ta‟liq, a suspended talaq available to the wife
in the event that the husband fails certain obligations. Each state has a standard ta‟liq agreement (which varies from state to state), and additional conditions may be entered into this document, which is signed separately from the marriage contract. Both the contract and the ta‟liq are recorded with the Marriage Registrar. Morocco: Under Article 47 of the Moudawana, all conditions are binding except those contrary to the terms and objectives of marriage and to compulsory legal rules; such conditions are void while the contract remains valid. Case law recognizes stipulations that the wife may work, provided her working serves the general interest of the country. Under Article 48, the court may waiver or modify a condition if facts or circumstances make it difficult to meet that condition. However, reference to Article 40 appears to state that an agreement for the marriage to remain monogamous cannot be altered. Under Article 49, the spouses may draw up a separate document regarding management of assets acquired during the marriage, and the parties are to be officially informed of this possibility at the time of marriage. Under Article 67(8), conditions agreed upon by both parties are to be recorded in the marriage contract. Algeria: Under amended Article 19 of the Code de la Famille (Family Code), the parties may specify in the marriage contract or any subsequent witnessed document, any conditions they choose, particularly concerning polygyny and the wife‟s employment, provided these do not conflict with the provisions of the Code itself. Sudan: Under Section 42 of the Muslim Personal Law Act, women have the right to stipulate any condition
that neither prohibits a legitimate right nor legitimizes a prohibited right. Conditions that are stipulated in the contract are obligatory on the husband. Tunisia: Under Article 11 of the Code du Statut Personnel (Personal Status Code), conditions can be stipulated in the notarized contract, and contravention of or failure to meet these conditions allows both spouses to apply for dissolution. Conditions can relate to persons or property.
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