Chapter-4

MAINTENANCE

4.1 INTRODUCTORY REMARKS

The chapter of maintenance has been discussed under the following

headings and sub-headings: Maintenance of Wife under Hindu,
Muslims, Christian and Parsi Laws- (a) Analysis of the legislative
provisions (b) Evaluation of the judicial pronouncements (c)
Identification of pitfalls (d) Advocacy of reforms and improvements.

Maintenance of wife under Hindu Law deals with the relevant

provisions of Modern Hindu Law regarding the Maintenance of wife.
It is a noteworthy fact that the maintenance of wife under the Hindu
Marriage Act, 1955 and the Hindu Adoption and Maintenance Act,
1956. The 'evaluation of the judicial pronouncements' in which the
judicial pronouncements of the various High Courts and Hon'ble
Supreme Court regarding the maintenance of wife under the Hindu
Laws have been evaluated. In the process of the evaluation of the
judicial pronouncements the issue involved in the case, the contention
of the petitioner and the respondent, the order or the judgments of the
respective High Courts or the Hon'ble Supreme Court and the merits or
the demerits of the judgments has been humbly tried to put forth.
Further, 'the identification of pitfalls' deals with the areas which has
been in the serious requirement to be noticed and calls for some
responsible steps for the reformation by the appropriate authority. The
area of the pitfalls has been found during the process of the analysis of
the legislative provisions and the evaluation of the judicial

272
pronouncements. Lastly, the advocacy for reforms and improvements
which deals with the suggestions and the progressive ideas for coping
up with these areas of pitfalls.

Maintenance of wife under Muslim Law deals with the responsibility of

the Muslim husband to maintain his wife in the form of Kharch-i-
pandan. After this the controversy between the Criminal Procedure
Code, 1973 and Muslim Personal Law regarding the maintenance of
Muslim divorcee has been discussed. The agitation of the Muslim
community due to the controversial judgment of the Shah Bano's case
which paved the way to the enactment of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 has also been analyzed
under this heading. The 'Evaluation of the judicial pronouncements'
deals with the evaluation of the decisions of the various High Courts
and Hon'ble Supreme Court regarding the maintenance of Muslim
divorcee. The evaluation of the cases and judicial pronouncements
describe the judicial scenario before and after the Shah Bano's
judgment. This heading also deals with the cause of the enactment of
the Muslim Women (Protection of Rights on Divorce) Act, 1986, and
the role of judiciary towards the application of the provisions of this
enactment. The reasons have also been mentioned as to why the
judiciary is sometimes blamed for promoting the application of the
provisions of Cr.P.C., rather the provisions of this enactment regarding
the maintenance if Muslim divorcee through the sufficient case laws.
Further, this part in the identification of pitfalls shows some loopholes
in the hurry and rash drafting of the Muslim Women (Protection of
Rights on Divorce) Act, 1986. These loopholes may be blamed to
allow the judiciary to distort some intactable rules of Muslim Law

273
regarding the maintenance of Muslim divorcee in the guise of the
judicial activism which can't be said a proper way for the intrusion in
the personal law of any community. Lastly, this part which is the
'advocacy of reforms and improvements', covers some humble
suggestions regarding the reformation of some provisions of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 , as this
Act has the heavy responsibility to represent manifestly the Islamic
Community to the whole world.

Maintenance of wife under Christian Law deals with the analysis of

the relevant provisions of the Indian Divorce Act, 1869, regarding the
maintenance of wife under the Christian Law. Further it deals with the
evaluation of the judicial pronouncements.

Maintenance of the wife under Parsi Law deals with the relevant
provisions of the Parsi Marriage and Divorce Act, 1988, regarding the
maintenance of wife. After the analysis of the legislative provisions of
the Parsi Marriage and Divorce Act, 1988, regarding the maintenance
of wife, the rest of the headings, i.e., evaluation of the judicial
pronouncements, identification of pitfalls, advocacy of reforms and
improvements have been discussed.

4.2 MAINTENANCE OF WIFE UNDER HINDU LAW

(a) Analysis of Legislative Provisions

The relevant legislations which govern the maintenance of wife under

Hindu law are: The Hindu Marriage Act, 1955, and the Hindu
Adoption and Maintenance Act, 1956. Provisions contained therein
would be discussed to know the legislative position of wife under
Hindu law. The relevant provisions are: Section 24, and Section 25 of
274
the Hindu Marriage Act, 1955, and Section 18 of the Hindu Adoption
and Maintenance Act, 1956. Section 24 of the Hindu Marriage Act,
1955, deals with the alimony pendente lite and the expenses of the
proceedings. This Section empowers the court to order the respondent
to pay the petitioner the expenses of the proceedings, if it appears that
either wife or the husband has not independent income for his or her
support and to meet out the necessary expenses of the proceedings. It
is to be noted that the court while making order under this Section,
pays due regard to the petitioner's own income and the income of the
respondent.

The Marriage Laws (Amendment) Act, 2001 was introduced. This

amendment inserted the proviso in Section 24 of the Hindu Marriage
Act, 195 5, which aimed to fix the duration of six months in the
disposal of the application of the payment of the expenses of the
proceeding and monthly sum during proceeding within the sixty days
from the date of the service of notice on the wife or husband, as the
case may be. Section 25 of the Hindu Marriage Act, 1955 deals with
the permanent alimony and maintenance. It comprises three
Subsections. Subsection 1 of this Section deals with the condition
where any husband or wife may for the permanent alimony or
maintenance at the time of passing any decree or at any time
subsequent thereto. This Subsection empowers the court to order the
respondent to pay the maintenance and support the gross sum or the
monthly or periodical sum for a term not exceeding the life of
applicant. According to this Subsection the responsibility of the paying
spouse ends on the marriage of the other spouse. The court fixes the
amount of permanent alimony and maintenance, keeping in view the

275
respondent's own income and other property and the income and other
property of the applicant. The court may, if necessary, also secure the
payment of permanent alimony by a charge on the immovable property
of the husband. Subsection 2 of this Section says that after the passing
of the order of the payment of permanent alimony under this Section,
in case the court is satisfied that there is a change in the circumstances
of either party. In this condition, the court may, at the instances of
either party, vary, modify or rescind any such order in such manner as
court deems just. Subsection 3 of this Section empowers the court to
rescind the order of the payment of permanent alimony, if it is satisfied
that the party in whose favour an order has been passed under this
Section has been 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 the wedlock.

Section 18 of the Hindu Adoption and Maintenance Act, 1956, deals

with the married women's right to reside separate and claim
maintenance. This Section comprises three Subsections. Subsection 1
of this Section entitles the Hindu wife to get the maintenance from her
husband during her life time. The right to be maintained is irrespective
of the fact that whether she was married before or after the
commencement of the Act. Subsection 2 of this Section provides
justifiable grounds to the Hindu wife under clause (a) to clause (g)
which entitle the Hindu wife to live separately from her husband
without forfeiting her claim to maintenance. The grounds are desertion,
cruelty leprosy, having another wife by the husband, keeping a
concubine by the husband, conversion from Hinduism to another
religion by the husband or any other justifiable cause.

276
Sub-Section 3 of this Section disentitles the Hindu wife to separate
residence and claim of maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to another religion.

The rule laid down in Section 18 of the Hindu Adoption and

maintenance Act, 1956 must also be read with Section 23 of this Act
which lays down that it shall be the discretion of the court to determine
whether any, and if so what maintenance shall be awarded under the
provisions of this Act. 1 Here in this Section, the right of the Hindu
wife whether married before or after the commencement of this Act, to
be maintained by her husband during her life time has been, reiterated
substantially in Subsection (1).However, this Subsection (1) must be
read with Subsection (2) and Subsection (3). Subsection (3) is an
exception to Subsection (1) which lays down that the Hindu wife can
not claim separate residence and maintenance, if she is unchaste or
ceases to be a Hindu by conversion to another religion. Subsection (2)
shows the justifiable ground upon which a Hindu wife lives separately
from her husband without forfeiting her claim to maintenance.

Clause (a) of Subsection 2 of the Hindu Adoption and Maintenance

Act, 1956 deals with the "Desertion of wife by husband". This clause
aims at giving the meaning of desertion as abandonment of the wife by
the husband without reasonable cause without her consent or against
her will or willful neglect of the wife by the husband. It accords with
the meaning given to the expression as used in Section 13(1) of the
Hindu Marriage Act 1955. The only distinction between Section 18(2)
(a), and explanation to Section 13(1), the Hindu Marriage Act, 1955 is
that under the latter the petitioner should show the respondent had

1
Mulla, Principles of Hindu Law (ed. 19th , 2006, New Delhi), p. 565

277
deserted him or her for a period of 2 years prior to the presentation of
the while under Section 18(2)(a) of the Hindu Adoption and
maintenance Act, 1956, desertion might be any duration. 2 A full bench
of the Kerala High Court has held that if a husband had deserted the
wife, the wife need not give the proof of animus. 3

Clause (b) of Section 18(2) of the Hindu Adoption and Maintenance

Act, 1956 deals with the "cruelty" by the husband to wife. For
succeeding the claim of cruelty, the wife must prove two distinct
element, first, ill treatment complained of, and secondly, the result and
danger of apprehension thereof. Any conduct of husband which causes
disgrace of wife or subject to a course of annoyance and indignity
amounts to legal cruelty. The harm apprehended by the wife may be a
mental suffering as distinct from bodily harm, because the pain of the
mind may be even more severe than bodily pain. 4

In Swajyam Prabha v. A.S. Chandra Shekhar, 5 it was held that "the

baseless allegations about the adultery would constitute mental cruelty
to the wife, so that cruelty is a solid ground for claiming maintenance
and separate residence". It is well settled principle of law that leveling
allegations of adultery without proper foundation and basis would
tantamount to perpetrating mental cruelty on the other spouse. 6 In Ram
Devi v. Raja Ram,7 the husband by his conduct made it evidently clear
that she was not wanted in the house and her presence was resented by
him, it was held that this amounted to cruelty and justified wife's living

2
Preeti Sharma, Hindu Women‟s Right to maintenance (ed. I, 1990, New Delhi) p. 135.
3
Raghavan v. Satyabhama Jaya Kumari AIR 1985 Kerala 193 (FB)
4
Supra note: 2, p. 136
5
AIR 1982 Kant. 295.
6
Madan Mohan v. Sarda AIR 1967 Punj. 397; Iqbal Kaur v. Pritam Singh AIR 1963 Punj. 242;
Mohinder Kaur v. Bhagram Air 1979 P & H 71.
7
1963 All. 564.

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separately.

Clause (c) of Section 18(2) of the Hindu Adoption and Maintenance

Act, 1956, deals with the "Leprosy" of the husband. A Hindu wife is
also entitled to live separately from her husband and has a right to
claims maintenance from him on the ground that he is suffering from a
virulent form of leprosy. It may be noted that no period is prescribed,
but it must be existing at the time when the claim for maintenance is
made.8 It does not make any effect whether the disease started before
or after the coming into force of the Act.9 A mild type of leprosy which
is capable of treatment can not be called virulent leprosy which is
malignant and contiguous and in which prognosis is usually grave. 10

Clause (d) of Section (18)2 of the Hindu Adoption and Maintenance

Act, 1956 deals with the ground which is "the husband having another
wife. A Hindu husband can not marry another wife after the
commencement of the Hindu marriage Act, 1955. Act lays down
monogamy as a rule of law. This gives the right to a wife to claim
maintenance, while living separately without forfeiting her claim to
maintenance on the ground that his husband has another wife living
with him. The interpretation of this Subsection has resulted into
conflicting judicial pronouncements by the entitlement of the second
wife to claim maintenance from the husband after the commencement
of the Hindu Marriage Act, 1955.11 In Annamalai v. perumayee
Ammamal,12 the High Court of Madras has held that clause (d) of sec-
18(2), would apply only in case of marriage solemnized before this

8
Supra Note: 4, p. 137
9
Supra Note: 1 p. 569
10
Sivaraya v. C.C. Padma Rao (1974) 1. SCJ 79.
11
Supra Note: 1 p. 570.
12
AIR 1965 Mad 139, 141

279
Act came into operation. The Andhra Pradesh High Court had earlier
taken the view that the second wife would be entitled to claim
maintenance under this provision. 13 The High Court of Calcutta has
taken the view that second wife would not be so entitled.14 The
Madhya Pradesh High Court as well as the Bombay High Court had in
the context of Sections 24-25 of the Hindu Marriage Act, 1955 and
also taking into consideration of present Section had expressed the
view that the expression 'wife' and 'husband' used in the Act can not be
given a strict literal meaning so as to convey only a legally married
husband and wife. It was also held that the word used in Section would
refer to parties who have gone through the ceremonies of marriage,
and the court can make order of maintenance at the instance of the
second wife.15 The Andhra Pradesh High Court in a recent full bench
decision over ruled the earlier decision while holding that second wife
is not entitled to maintenance under this Section, since after coming
into force of the Hindu Marriage Act, 1955, bigamous marriage is
prohibited. The second Marriage being void, the second wife cannot
claim maintenance under this Section since the parties to the marriage
will not have the status of legally married husband and wife.16 The
decision of the High Court of the Bombay in Kirshnakant's Case was
overruled by the decision of the Full Bench.

In Bhau Saheb v. Lilabai17 which took the view that petition

challenging the nullity of marriage by Virtue of Section 5(1) of the
Hindu Marriage Act, 1955, is petition seeking declaration of the nullity

13
C. Obula Konda Reddy V.C. Pedda Venkata AIR 1976 AP
14
Ranjit Bhattacharya v. Sabita AIR 1996 Cal 301.
15
Laxmi Bai v. Ayodhya Prasad AIR 1991 p. 47; Krishnakant v. Reema AIR 1999 Bom. 127.
16
Abayalla M. Subbareddy v. Padmamma AIR 1999 AP 19(FB); Soloman v. Jaini Bai AIR 2004
Mad. 460 (void marriage-second wife not entitled).
17
JT 2004 (10) SC 366

280
of the marriage and is not a petition affecting marital status and thus,
would not entitle the wife if such is void marriage to the relief of
maintenance. The Court held that the words 'any decree' in Section 25
of the Hindu Marriage Act can't be construed to mean 'every decree' so
as to entitle such spouse to maintenance. The Supreme Court has in the
context of entitlement to a spouse of void marriage, now held that once
there is a decree of nullity in respect of void marriage such spouse
would be entitled to maintenance. The Court taking note of its earlier
decision in. the Chand Dhawan v. Jawahar Lai Dhawan 18 held that
decision clearly stipulated that once there is decree bringing about
disruption of marital tie, including a decree nullifying a void marriage,
the spouse was entitled to maintenance.

Section 25 of the Hindu marriage Act, 1955 applies on the disruption

of the marriage tie, as explained and interpreted by Supreme Court in
above decisions, whereas Section 18 of the Hindu Adoptions and
Maintenance Act. 1956 applies in cases where the marriage Subsists
and confers upon the wife the right to claim maintenance without
seeking disruption and the marriage tie. 19

In fact Supreme Court while analyzing the provisions of the Hindu

Marriage Act, 1955 in Ramesh Chandra Daga v. Rameskwari Daga 20
stated where the marriage is not dissolved by any decree of the court,
resort to Section 25 of the Hindu Marriage Act, 1955 is not allowed as
any of the spouse whose marriage continues can resort to any other
provision like Section 125 of Criminal Procedure Code, 1973 or
Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

18
JT 2004 (10) SC 366
19
Supra Note: 1 p. 571
20
JT 2004 (10) SC 366

281
It appears that though the Hindu Marriage Act, 1955, the second
marriage during the life time of first wife, the present Sections does
not clearly states that it is only the legally married wife who can claim
maintenance in the above circumstance. If it had been the language of
the Section the claim of the second wife would necessary fail.21

The Hindu Marriage Act, 1955, which prohibited bigamy, was enacted
before the Hindu Adoption and Maintenance Act, 1956. The
legislature therefore conscious of the fact that the Hindu marriage Act,
1955, prohibited of bigamous marriage, and yet the present Section, as
it stands today had been enacted. It is submitted that if the legislative
intent in the context of this Section were to grant the right of
maintenance only to a legally married wife, it would have clearly
stated so. It is worth while to note that maintenance under Section 18
of the Hindu Adoption and Maintenance Act, 1956 has been construed
the beneficial piece of legislation. It also appears that the word
'husband' and wife in the context of this Section cannot be read to
convey only a legally needed but be read as conveying the meaning of
person who has undergone the ceremonies of marriage. The provision
as it stands today is widely worded so as to sustain the claim of
maintenance by second wife. The claim is maintainable irrespective of
the fact that the other marriage had taken place after or before the
marriage of applicant wife, provided the other wife is living. 22 The
word any other wife living, in this clause are of sufficiently wide
connection to include any wife other them the wife claiming
maintenance under this Section. The meaning is not confined to a wife

21
Supra Note: 1 p. 571-572.
22
Ibid p. 572

282
who is junior to the wife who is claimant, 23 nor is it necessary that the
husband and other wife should be living together. The word living
here means alive and not living with the husband, 24 a Second wife who
had abandoned her husband for no justifiable reasons and not for
immoral purpose would be entitled to live separately from the husband
by virtue of present clause, and claim maintenance under present
Section.25

Clause (e) of Section 18(2) of the Hindu Adoption and Maintenance

Act, 1956 deals with a ground which is "husband keeping a
Concubine". A Hindu wife is also entitled to live separately from her
husband and claim maintenance from him and the ground that he keeps
a concubine in the same house in which she is living or habitually
resides with a concubine elsewhere. In the second part of this clause,
the emphasis is the „habitually‟ and not so much on residence. 26 It is
not necessary that the husband should have actually shifted his
residence to the place where concubine lives.

Clause (f) of Section 18(2) of the Hindu Adoption and Maintenance

Act, 1956 deals with the ground which is "husband ceased to be a
Hindu by conversion".

A Hindu wife is entitled to live separately from her husband if he has

ceased to be a Hindu. However, the terms Hindu in this clause must be
understood in the wide sense given to it in Section 2 as will be seen
from Subsection 3 of that Section. So husband continues to be a Hindu
even though he may have been converted to any other of four religions:

23
Jagamma v. Satyanarayana Murti AIR 1958 All 582.
24
Kalawati v. Ratan Chand AIR 1960 All 601
25
Ram Prakash v. Savitri Devi AIR 1958 Punj. 87
26
Kesar Bai v. Hari Bhan AIR 1975 Bom. 115

283
Hinduism, Buddhism, Jainism, Sikhism. Conversion in the present
context implies that the husband has voluntarily relinquished his
religion and adopted another religion after a formal ceremonial
conversion; A Hindu does not cease to be a Hindu merely because he
professes an ardent admirer and advocate of such religion and its
practices.27 However if he abdicate his religion by a clear act of
renunciation and adopts the other religion, he would cease to be Hindu
within the meaning of that clause.

Clause (g) of this Section 18(2) of the Hindu Adoption and

Maintenance Act, 1956 deals with the ground which is 'any other
justifiable cause'. It is a residue clause; it runs, "if there is any other
cause justifying her living separately". For seeking in the remedy under
this clause the conduct of the husband should be such that, in the
opinion of the court, the wife has 'grave and weighty' or grave and
convincing reason for withdrawing from the society of the husband and
it would amount to a justifiable cause. It is submitted that all those
cases where the court may refer husband's petition for the restitution of
conjugal right will be covered under this clause entitling a wife to
claim separate residence & maintenance under this clause . 28 In
Sitbbegowda v. Hoonamma, 29 wife claimed maintenance on the ground
that husband treated her with cruelty and that he remarried and was
living with second wife. The charge of cruelty was not established, but
it was found by the court that husband was living with woman, having
illicit relation with her and from which a child was born. Since
marriage with this wife was not established, the case was not covered

27
Supra Note: 1 p. 574.
28
Kesar Bai v. Haribhan AIR 1974 Bom 115
29
AIR 1984 Kant. 41

284
by clause (d) of Section 18(2). The court held that this was nonetheless
a just cause for her to live separate and she was entitled to claim
maintenance. The court took recourse to clause (g).

But according to Subsection (3) of Section 18, a Hindu wife shall not
be entitled to separate residence and maintenance from her husband if
she is unchaste or ceases to be a Hindu by conversion.

(b) Evaluation of judicial pronouncements

Now, some landmark judicial decisions would be discussed here to

clarify the application of these Sections in the matrimonial cases .First
of all, we would like to discuss the application of Section 24 and
Section 25 of the Hindu Marriage Act, 1955, then some cases would
be discussed regarding the application of Section-18 of the Hindu
Adoption and Maintenance Act, 1956. In Hani v. Parkash, 30 the
question before the High Court was that in case of non compliance an
order under Section 24 of the Hindu marriage Act, 1955, can be the
defence of the defaulter. Husband obtained a decree of divorce against
the wife on the ground of cruelty. She filed an appeal against it. During
pendency of appeal, she sought maintenance and litigation expenses
under Section 24 of the Hindu Marriage Act, 1955. The court decreed
Rs. 500 per month as maintenance pendente lite and Rs.2, 200 as
litigation expenses. The husband failed to comply with this order
despite several notices over a period of two years. The court observed:
"Law is not that powerless as not to bring the husband to book. If the
husband has failed to make the payment of maintenance and litigation
expenses to wife, his defence be struck out." The verdict of the High

30
AIR 1964 P & H 175.

285
Court in this case shows that the purpose behind this is to ensure that a
husband provides for the wife and children while the litigation is on. If
he fails to do so, his defence will be struck out and the case will
proceed.

In Sushila Viresh Chhawda v. Viresh Nagsi Chhawda, 31 the issue

involved in this case was whether the litigation expenses and interim
maintenance under Section 24 can be claimed, even when the main
petition is for nullity of the marriage. Husband filed a suit for nullity of
marriage under the Hindu Marriage Act on the ground of fraud. His
allegation was that the wife suffering from a big ovarian tumour which
had to be surgically removed along with an ovary just eight days after
the marriage and this fact that the tumour was concealed at the time of
marriage. The wife filed an application for interim maintenance under
Section 24 of Hindu marriage Act. This was opposed by the husband
on the ground that the marriage was void and the view of the fraud
committed by her, she was not entitled to interim maintenance. The
family court rejected the wife's application without even going into
merits. Hence her special leave petition under Article 227 of the
constitution. The High Court set aside the order of the family court. It
was held that the wording of Section 24 the Hindu Marriage Act, 1955
is very clear that an application for maintenance can be filed in any
proceeding under the Act, "When a fact of marriage is acknowledged
and a proved, alimony follows subject, of course, to the discretion of
the court in matter having regard to the means of the parties and it
would be no answer to the claim. That the marriage was void ipso jure
or was voidable." The court further remarked; "The direction of interim

31
AIR 1996 Bom. 94.

286
alimony and expenses of litigation under Section 24 is one of urgency
and it must be decided as soon as it is raised and the law take care that
nobody is disabled from prosecuting or defending the matrimonial case
by starvation or lack of funds". The purpose of Section 24 is to provide
sustenance and financial assistance for pursuing the litigation. The
provision is available in case of any proceeding under the Act and not
confined to any particular proceeding.

In Lataben Y. Goswami v. Yogendra Kumar S. Goswami,32 the issue

before the Gujrat High Court was whether the husband can be absolved
of the liability to pay arrears of interim maintenance to the wife, after
allowing dismissal of this main petition under the Act? In the instant
case, husband filed a petition for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955, whereupon the wife
applied for maintenance under Section 24, Hindu marriage Act, 1955.
The court allowed Rs. 200 per month as interim maintenance and Rs.
300/- towards litigation expenses. The husband challenged this but his
application was rejected. He was given sufficient time for making the
payment which he failed to do. He made no appearance on subsequent
dates either in person or through counsel; hence the same was
dismissed for non-prosecution. The wife filed an application for
recovery of arrears of maintenance amount w.e.f., April 1, 1988 to
August 5, 1993. The same was turned down as being not maintainable
in view of the dismissal of the main petition of the husband. Hence, the
wife's revision, it was argued on behalf of the wife that under the
provision of Section 28(a) of the Hindu Marriage Act, all decree and
orders made by it in any proceeding under the Act are enforceable in

32
AIR 1996 Guj. 103.

287
the same manner as decrees and orders of the made in the exercise of
its original civil jurisdiction. And further, it was contended that an
order for alimony pendente lite remains in force during pendency of
proceedings and in this case the proceedings under Section 9 for the
restitution of conjugal rights remained pending till the application was
dismissed on August 5, 1993 and so the wife was entitled to the
arrears. After going through the contentions of both the parties, the
wife's revision was allowed. The court observed 'That the finding of
the learned trial court that the interim order passed in any proceedings
would itself get extinguished or lost the sanctity with the ultimate fate
of the main proceedings is perverse in the face of it. In case such
interpretation is given, then the whole purpose enacting the aforesaid
Section of the Act will be frustrated. Not only this, but it will be easy
for a spouse who does not want to pay the amount of the maintenance
or the cost of litigation despite the order of the Court to deny the same
by allowing the dismissal of the petition for non-prosecution. Section
28A was substituted in the Act of 1955 to mitigate the hardships". Here
it can be said that the decision is praiseworthy as the husband cannot
be allowed to defeat the claim of the wife to the arrears of maintenance
by simply dropping or not proceeding with the main petition. This
would not only be unfair but also the defiance of court order.

In Ghari Lai v. Surjit Kaur, 33 the issue before the High Court of
Jammu and Kashmir was under Section 5 of the Limitation Act, 1963
for condonation of delay be termed as proceedings for purposes of
Section 24 of the Hindu Marriage Act, 1955.In that case the husband
obtained an ex-parte restitution decree against the wife. The wife filed

33
AIR 1997 J & K 72.

288
an application for setting aside the same after the period of limitation
had expired. She also filed an application under Section 5 of the
Limitation Act for condonation of delay. Pending this application, she
filed an application under Section 30 of the J & K Hindu Marriage Act
(4 of 1980) for maintenance. This Section of the J&K Act in pari
material with Section 24 of the Hindu Marriage Act, 1955) The
husband objected to her application on the ground that proceeding
under Section 5 of the Limitation Act could not be considered as
proceeding for purpose of grant of maintenance. His plea was,
however, rejected. Hence, he appealed. The husband's appeal was
admitted. The High Court reiterated the decesion on Puran Chand v.
Kamla Devi34 where it was held that maintenance is awardable on
monthly basis "during the proceeding which connotes that
maintenance is admissible from the time of commencement of the
proceedings till their termination. According to the court proceeding in
trial court would naturally commence from the date on which issues
are framed and since there can be no stage of framing of issues in an
application seeking condonation of delay in proceedings under Section
5 of the Limitation Act, Section 30 of the J&K Hindu marriage Act
cannot apply. Accordingly, the court held that application for
condonation of delay was not a proceeding within the meaning of
Section 30 of the J&K Hindu marriage Act (or Section 24 of the Hindu
Marriage Act). While conceding that this provision seeks to help a
litigating spouse who does not have sufficient means to maintain
himself/herself, the court observed that provision cannot be used in
such a way that it acts as a weapon of sword for harassment of the
other party.

34
AIR 1981 J&K 5.

289
Virtually the strict interpretation of the provision can work hardship on
the party sometimes. Supposedly wife obtains an ex-parte order and the
husband files an application for setting aside and condonation of delay
for seeking restoration of the order only to harass the wife, would the
court deny her expenses to fight out the application? Each case needs
to be decided on its own facts and circumstances.

In Amit Kumar Sharma v, Vlth Addl. District and Session Judge,

Bijnor35 the issue before the Allahabad High Court was whether a
husband's mother's needs be taken care of in a wife application for
maintenance when the mother is staying with her? In that case the
husband filed a petition for divorce. Thereupon, the wife filed
application for maintenance under Section 24 and 25 of the Hindu
Marriage Act, 1955, claiming maintenance for herself, two minor
children and ailing mother of the husband who too was staying with
her. The same was allowed by the trial court and affirmed by the
additional district judge in appeal. The husband filed an appeal against
the order. The court held that Section 24 contemplates maintenance
either to wife or husband and the mother is in no way connected with
us relating to marriage between the husband and wife. The court
observed that the Indian social fabric involves maintenance of parents
with religious scruples and devotion but the court is called upon to
interpret the law and not religious or social duties. Section 125 of the
Cr. P.C. and Section 20 of the Hindu Adoptions and Maintenance Act
are there to take care of the Parents maintenance rights according to the
court. The court further held that where there is specific provision of
law on the basis of religious scruples or social system, it could not be

35
AIR 1999 All 4.

290
permissible to stretch Section 20 of the Hindu Adoption and
Maintenance Act, 1956, nor it can overlap the said Sections. Section 24
of the Hindu Marriage Act, 1955, does not postulate the scope of
granting maintenance to the mother of the husband even when she is
ailing and lives with the applicant. Maintenance award in favour of the
mother was accordingly set aside by the High Court.

On evaluation of this decision of High Court it may be pointed out that

here the court has taken a very rigid and technical view. Further, while
awarding maintenance in an application the court considers, inter alia,
the needs of the applicant. Besides, under Section 25 "any other
circumstances of the case" is a relevant consideration. When the
husband's mother, whom in any case he is liable to maintain, is staying
with his estranged wife, who is taking care of her needs, including
medical treatment, the court should have given due consideration to
these needs rather than driving her (the mother) to file separate suits
for maintenance under the provision of the Cr. P.C. or Hindu Adoption
and maintenance Act, 1956.

In Meshchandra Rampratapji Daga v. Rameskwari Rameshchandra

Daga,36 the Bombay High Court has held that the wife is not entitled to
maintenance if the marriage is void. The observations of the court in
Krishnakant v. Reena,37 were referred to "that the Hindu Marriage Act,
955, is a piece of social welfare legislation regulating the marital
relations of Hindus consistently with their customary law, i.e. Hindu
law. The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceeding is

36
(2001) 1 Femi-Juris CC 60 (Bom)
37
(1999) 1 Mah. LJ 388.

291
obviously to financial assistance to the indigent spouse to maintain
herself during the pendency of the proceedings and also have sufficient
funds to carry on the litigations so that the spouse does not unduly
suffer in the conduct of the case for want of funds. The words 'wife' or
'Husband' used in Section 24 of the Act include a man and a woman
who have gone through the ceremony of Hindu marriage which would
have been valid but for the provisions of Section 11 read with clause
(i) of Section 5 of the Hindu Marriage Act,1955. These words have
been used as convenient terms to refer to the parties who have gone
through a ceremony of marriage whether or not that marriage is valid
or subsisting, just as word marriage has been used in the Act to include
a purported marriage which is void ab initio".

In Padmavathi v. C. Lakshminarayana, 38 the question before the

Karnataka High Court was whether the mere fact that the wife being
educated is capable of earning, defeat her claim for maintenance under
Section 24 of the Hindu Marriage Act, 1955. It was held by the High
Court that the only condition for granting maintenance under Section
24 is that the applicant has no independent income sufficient for
support. The court observed that the object of Section 24 would be
defeated if the interim maintenance is denied during the matrimonial
proceedings on the ground that the wife is capable of earning her living
because of her qualification. It further remarked by the Court that the
reasoning of the family court judge was "not only contrary to settled
legal position but the spirit and purpose of Section 24 of the Act". The
decision seems to be correct that the mere fact that the wife is capable
of earning, without any contention or proof that she is in fact earning,

38
AIR 2002 Kant 424

292
does not disentitle the wife to claim maintenance under Section 24 of
the Hindu Marriage Act, 195 5.

In R. Suresh v. Chandra, 39 the court has elucidated the concept and

meaning of term support in Section 24 of the Hindu Marriage Act,
1955, and held that the expense incurred on medical treatment would
also be covered in the word 'support' It was held that since the word
"support" in Section 24 of the Hindu Marriage Act, 195 5, was not
defined, it should be given dictionary meaning or as understood in
general parlance. Further, the court can draw inspiration from the word
"maintenance" as defined in Section 3(b) (i) of the Hindu Adoption
and Maintenance Act, 1956, which includes provision for food,
clothing, residence, education, medical attendance and treatment.
Though this definition too is not exhaustive but only inclusive, medical
attendance and treatment have been specifically mentioned. Referring
to Pradeep kumar Kapoor v. Shailja Kapoor,40 it was held that the
word "support" and "maintenance" are synonymous and the definition
of "maintenance" as given in the Hindu Adoptions and Maintenance
Act, 1956, equally applies to the word "support" in Section 24 of the
Hindu Marriage Act, 195 5. As far as the point reimbursement from
office was concerned, the court held that the issue is not of his
reimbursement from office but the wife's claim for reimbursement
from him. The wife was, accordingly, held to be entitled for
reimbursement of her medical expenses from the husband under
Section 24 of the Hindu Marriage Act, 1955.

In Ramesh Babu v. Usha, 41 the issue before the Court was that whether

39
AIR 2003 Kant 183
40
AIR 1989 DEL. 70
41
AIR 2003 Mad. 281.

293
the applicant who is entitled to free legal aid, can seek litigation
expenses under Section 24 of the Hindu Marriage Act, 1955. In the
instant case, a husband filed a petition for annulment of marriage. The
wife claimed interim maintenance and litigation expenses under
Section 24 of the Hindi Marriage Act, 1955. The family court ordered
Rs. 2,500/- towards litigation expenses and Rs. 1,250 per month as
interim maintenance. Both were dissatisfied and filed appeal against
the maintainability of the litigation expenses and the wife against
inadequacy of the amount of interim maintenance. The husband's
argument was that the wife was entitled to free legal aid and, therefore,
he was not liable to pay her litigation expenses. The court, however,
did not accept this argument and held. Though free legal aid is
available however, I am of the view that on this ground the claim of
the deserving person cannot be rejected. The amount of interim
maintenance was also raised from Rs. 1,250/- to Rs. 3,000/- per month
as the wife had no independent source of income and the carry home
salary of the husband was assessed at around Rs. 9,000 per month. To
deny litigation expenses under Section 24, only on the ground that
legal aid available to the applicant is not justified, as was done by the
Gujarat High Court in K.K. Desai v. A.K. Bhai Desai.42 In this case the
court rejected a wife's claim for litigation expenses on the ground that
she can avail free legal aid which is provided by the state. According
to the court, in that case, the burden cannot be put on the husband
merely because the wife was ignorant of her right to avail legal aid.
The view adopted by the court in Ramesh Babu is more realistic and
logical.

42
AIR 2000 Guj 232.

294
In S.S. Bindra v. Tarvinder kaur, 43 the court had to determine that in a
claim for maintenance pendente lite what is the crucial time for
assessing the income of the non-claimant - time of petition of claimant
or time of order. Here the Court held that in in awarding interim
maintenance, one of the considerations is that the wife and children
shall enjoy the same standard of living as the husband, but emphasized
that "the intention was not to peg it or freeze it to the date of
separation". If in term, orders are to be pegged to a particular point in
time then if income of the earning of the spouse were to suffer a drastic
reduction for any reason including deterioration in his/her health, the
court would be precluded from making any adjustment because of
these factors. According to my perception a very logical interpretation
indeed. If the income of the husband increases manifold between the
time of the application and order of the judge should not be precluded
to fix the amount in that basis; and so also if it decreases. It should not
be left to the claimant or non-complainant to file fresh application for
reassessment.

In Chandra Guha Roy v. Gantam Guha Roy, 44 the issue that whether an
educated young lady should be expected to be capable of maintaining
her own self or not. In that case, a husband filed a petition for divorce
and the wife applied maintenance under the Section 24 of the Hindu
marriage Act, 1955 and also under the Section 125 of Cr. P.C.
thereafter, the husband also filed an application under Section 24 of the
Hindu Marriage Act, 1955. The applications of both the parties were
dismissed by the trial court. Against the wife's application, it was held
that the husband was no longer in service as, consequent to his arrest

43
AIR 2004 DEL 242.
44
AIR 2004 Jhar 36

295
after wife's criminal complaints against him, his services were
terminated. The court further observed that it was a settled principle of
law that an educated lady can not be encouraged to sit idle expecting
any allowance from the husband. The wife filed an appeal against the
order. It was held that the ground for rejection of the wife's application
was not proper. The income of the husband must be his special
knowledge; he did not make any attempt to prove either his actual
income or his dismissal from job, besides, when his application for
maintenance was rejected he did not challenge the same and this
implied that he was not prejudicially affected by the order. Above all,
according to the court, the husband had filed the divorce suit which
also incurred expenditure which goes to show that he did have some
income. In view of all these facts, the matter was remanded for fresh
trial. According to my point of view in our times of equality, a wife is
as much liable to maintain her husband as the husband is to maintain
his wife -depending on the circumstances of the case. However, the
trial court's observation in this case that an educated young lady cannot
be expected to sit idle expecting allowance from the husband, did not
find favour with the High Court. There can, however, be no hard and
fast rule in this respect and each case would have to be decided on its
own fact and situations.

Now, some cases with regard to the permanent alimony and

maintenance under Section 25 of the Hindu Marriage Act, 1955 would
be analyzed. In Chand Dhawan v. Jawaharlal Dhawan, 45 the issue
before the court was: Do the term "any decree" in Section 25 of the
Hindu Marriage Act include an order of dismissal of the petition? The

45
(1993) 3 SCC 406

296
parties were married in 1972 and had three children. In 1985, a petition
for divorce by mutual consent was filed in the purported to have been
filed jointly by the consent of both the spouse as per the requirement of
Section 13(b) of the Act. The petition was kept pending for six months.
On coming to know of the petition, the wife filed objections.
According to her she never consented to the divorce and the husband
had duped her into signing some blank paper on a false pretext, which
he used in the petition. However, some understanding was arrived at,
under which the wife agreed to join the husband. Both the parties gave
a joint statement and the divorce petition was got dismissed. Barely
three months later, the husband filed a divorce petition on several
ground. Wife's is application under Section 24 for litigation expenses
and maintenance pendente lite, which was granted. Since the husband
did not make the payments, the divorce proceeding was initiated by
him were stayed under order of the High Court of Allahabad. The wife
filed a petition under Section 25 for grant of permanent alimony on the
ground that she was facing starvation whereas the husband was a
multimillionaire. She also filed a petition under Section 24 for
maintenance pendente lite and litigation expenses. The Additional
District Judge allowed her petition and granted a sum of Rs. 6,000 as
litigation expenses and Rs 2,000/- per month as alimony pendente lite
from the date of application. The husband filed a revision petition
against it in the High Court; the wife also approached the court
seeking enhancement of the amount. Both the revision petitions were
referred to a larger Bench. The husband's objection was that the wife's
application was not maintainable since there was no decree under the
Act, and in the absence of "any decree" no order under Section 24 or
25 of the Act could be passed. This objection was sustained whereupon

297
wife filed an appeal in the Supreme Court. The issue was whether the
words any Section 25 includes an order of dismissal of petition.
Reference was made to several cases. Some courts held that permanent
alimony can be granted only when any decree and the relief sought is
given, if the relief is not granted then it means that there is no decree
and in such situation maintenance cannot be awarded. On the other
hand, there were cases supporting the argument that the words "passing
any decree" imply both the allowing and dismissal of the main petition.
After an analysis of the case law, the Supreme Court came to the
conclusion that the wife's application for maintenance was not
maintainable as the wife had withdrawn her consent to the divorce
petition and the same was dismissed. An order of dismissal of a
petition does not disturb the marriage not confers or takes away any
legal character or status.

According to the court that without the marital status being affected or
disrupted by the matrimonial court under the Hindu Marriage Act,
1955, the claim of permanent alimony was not valid as ancillary or
incident to such affection or disruption. The wife's claim for
maintenance under the Hindu Marriage Act, 1955 was dismissed. The
court held that the wife's claim in such a situation can be agitated under
the Hindu adoption and maintenance Act, 1956 since Section 18(1) if
this Act entitles a wife to maintenance even with any disruption in her
marital status. It observed that like a surgeon, the matrimonial court, if
operating assumes the obligation of the post operatives and when not
leaves the patient to the physician. This judgment is bound to create
problems for wives whose husband want to get rid of them and file
petition which for whatever reasons get dismissed. The dismissal of the

298
petition only goes to show that the case of the husband against the wife
is unfounded. What is the fault of the wife in such case? Secondly
while Hindu Adoption and Maintenance Act where a wile can seek
maintenance even without any disruption of her marital status what
about woman from other communities. They have to bank upon the
provision of the Cr.PC.

In Ashabi B. Takke v. Bashasab Takke, 46 the issue before the Karnataka

High Court was that whether a wife's refusal to join her husband who
has remarried sufficient justification for her withdrawal from him and
claiming maintenance. The High Court held question of the wife
deserting the husband or the husband deserting the wife pales into
insignificance in the light of this development. The fact that the wife
could not get maintenance earlier under Section 125 of Cr. PC
proceeding also cannot have any hearing in a suit for maintenance file
subsequent to the defendant husband having contracted a second
marriage. This is so even if the personal law of the defendant permits
him to contract more than one marriage. The second marriage of the
husband per se is sufficient justification for a wife to leave him and
claim maintenance. When that is proved, nothing else needs to be
established.

In Bhau Saheb v. Leelabai, 47 there were two main issues which had to
be settled by the court:(i)Whether an order dismissing a wife's petition
seeking declaration that her marriage was valid can come under the
term "any decree" so as to entitle her to claim maintenance under
Section 25 of the Hindu Marriage Act,1955. (ii) Whether a wife whose

46
AIR 2003 Kant 172
47
AIR 2004 Bom. 283 (FB)

299
marriage is void, is entitled to maintenance. The facts of the case was
that shortly after marriage, the wife filed criminal case under Sections
498A, 323, and 506 of the penal Code against the husband. She also
filed case for maintenance under Section 125 of the Cr. P.C. this was
dismissed by the family court on the ground that she was not the
legally wedded wife of the opposite party. Meanwhile she filed an
application before the family court seeking declaration that the
marriage was valid and the child is legitimate. Along with that she
sought maintenance for the daughter. Her petition seeking declaration
regarding validity of the marriage was dismissed by observing that she
was not legally wedded wife since her husband was an already married
man. Maintenance, however, was granted in favour of the child. In the
backdrop of this legal battle she filed a petition under Section 25 of the
Hindu Marriage Act, 1955 for permanent alimony which was allowed
by the family court and the husband was ordered to pay Rs. 1,000 per
month to the wife w.e.f. the date of application. The family court drew
support for its order from several judgments. The husband appealed
against the family court order. He denied solemnization of marriage
and in the alternative claimed that he was already married on the
alleged date of marriage with the petitioner and so the marriage if any,
was void in view of Section 5(i) read with Section II of the Hindu
Marriage Act, 1955, and so the "wife" was not entitled to any
maintenance. The court pointed out that conduct of the parties and also
other circumstances of the case are important consideration and they
cannot control the discretion conferred upon the court by the
expression "court may", If there can be cases of denial of maintenance
to even legally wedded wife the liberal construction of Section 25 so as
to entitle an illegitimate wife to maintenance would not be proper.

300
According to the court, it is a fundamental principle of law that in
order to claim a relief from the court of law, there must be a legal right
based on a legal status. When status of a woman as wife is not
recognized by the provisions of the Act which confers the right of
permanent alimony, she cannot be entertained for grant of relief in the
absence of recognition of her status by the Act. If the construction of
the word "wife" is not accepted uniformly for the same remedy
provided in special legislation i.e., Section 125 of Cr, P.C. and
personal law, anomalous position may occur, in personal law. The
court observed: "Even while considering Section 25 to be a "welfare
legislation", it cannot be ignored that a liberal construction although
may benefit the second wives who are drawn into the form of marriage
by keeping them ignorant about illegitimacy of the same, may
encourage bigamous marriage with preventing bigamous marriage".
Further the court made a distinction between a marriage which is void
and one which is voidable. The court may consider granting of
maintenance while declaring the nullity of a voidable marriage as the
relationship would be legal in law until annulled, but not in case of
nullity of marriage which is void ipso jure. The wife lost her case. The
court held that any decree would not mean every decree so as to entitle
a wife to claim maintenance; and further that wife of a void marriage is
not entitled to maintenance. That absolving a husband of the liability to
maintain his second wife who was kept in the dark about the fact of his
first marriage would encourage, rather than discourage a man to enter
into such bigamous marriage. A wife would rarely enter into a
marriage with an already married man with full knowledge of this fact
simply because she would not be denied maintenance.

301
In Geeta Satish Gokarna v. Satish Gokarna, 48 the issue before the
Court was: Can a wife under a consent decree agree to give up to her
claim for any maintenance in future and would this debar her from
claiming any maintenance from her husband thereafter? In the instant
case, a marriage was dissolved by mutual consent of the parties and as
one of the terms of the consent decree, the wife agreed not to claim any
maintenance/alimony from the husband. However, after two years of
the decree, she filed an application under Section 25 of the Hindu
Marriage Act, 1955 for permanent alimony at the rate of Rs. 25,000/-
per month from the date of application. The trial court held that the
wife's application of maintenance despite the consent clause where
under it was agreed that "the petitioner [wife] will not claim any
maintenance or alimony in future from the respondent [husband]".
Accordingly, it ordered the husband to pay Rs. 2,000 per month as
maintenance to the wife. Both the parties appealed - the wife against
the quantum and the husband against the very maintainability of the
wife's claim. The appeals were dismissed. The High Court found no
material on record which could justify enhancement of the amount in
favour of the wife, and as to the husband's objection, it held that the
power to grant maintenance has been conferred on the court by
parliament under the Act and the parties cannot, by agreement, oust the
court's jurisdiction. The court further stated that permanent alimony
and maintenance are a larger part of the right to life. These provisions
according to the court are included "to enable a person unable to
maintain her/him to be protected. Therefore, any clause in a contract or
consent terms providing to the contrary would be against public
policy". The principle is that where on grounds of public policy, wife

48
AIR 2004 Bom. 345

302
cannot enter into such contract then the contract is void and the court
will take no notice of that and ignore that part of the order though it
was made by consent because as remarked by Lord Atkin 'the wife
right to future maintenance is matter of public concern which she;
cannot barter away." An agreement in a consent decree not to claim
maintenance cannot close the doors for a wife's claim of maintenance
thereafter. Maintenance has been construed as an integral part of right
to life. The decision is good as it cannot be denied that maintenance is
an integral part of right to life; one really wonders whether it is fair to
allow a consenting party to retract. The view taken by the court has the
potential of discouraging mutual settlement of issues and consent
divorce since consent agreements are package where parties agree to
barter certain rights and claim to buy peace. If term and conditions of
the consent agreement are fair and reasonable the courts should honour
such agreement and discourage retraction.

In Surendra Kumar Bhansali v. Judge, Family Court, 49 the issue was

whether an application under Section 25 of the Hindu Marriage Act,
1955, maintainable while an appeal against divorce is pending. High
Court held that an application, under Section 25 can be made of
passing of the decree or at any time subsequent thereto. In this case,
since the divorce petition by the husband was decreed and the marriage
dissolved, the wife's application was held to be tenable. According to
the court, the relief could have been refused if the main petition had
been dismissed as per the decision of the Supreme Court in Chand
Dhawan v. Jawaharla Dhawan, 50 but not simply because an appeal
against the divorce decree was pending. The decision is right which

49
AIR 2004 Raj 257
50
1993 3 SCC 406

303
declares that an appeal against a decree of divorce does not disentitle a
party from filing an application for maintenance under Section 25 of
the Hindu Marriage Act, 1955. Such application, in terms of the
provision of Section 25, can be filed at the time of the passing of the
decree or at any time subsequent thereto. An appeal against the decree
does not take away this right.

In Sudha Suhas Nandanvankar v. Suhas Ramrao Nandanvankar, 51 the

issue was: Can a wife whose conduct demonstration that she is trying
to take advantage of her own wrong or fraud to harass the husband.
The parties were married in 1995 according to Hindu rites. The
marriage was annulled by a decree of nullity in 1996 on the ground that
the wife was suffering from epilepsy at the time of marriage which fact
was not disclosed to the husband and hence a fraud was committed on
him [prior to the Marriage Laws (Amendment) Act, 1999 epilepsy was
a ground on which a marriage could be avoided and decree obtained
under Section 11, coupled with Section 5(ii) (c) of the Hindu Marriage
Act, 1955. The word epilepsy in Section (c) of Section (5(ii) has now
been deleted.] Even though the decree was ex parte, it was not
challenged by the wife. However, after the decree the wife first
claimed return of articles which were presented to her by her parents at
the time of marriage. Further, she claimed expenses incurred at the
marriage. During pendency of this application she again submitted
application for articles and jewelry presented to her by her in-laws at
the time of marriage. She further claimed permanent alimony. The
wife's application was partly allowed by the family court. Hence, she
files an appeal in respect of part rejection of her application. The main

51
AIR 2005 Bom 62.

304
issue for consideration was in respect of alimony claimed by her. The
court of nullity conceded that a wife is entitled to claim alimony even
though a decree of nullity is passed at the instance of the applicant.
This, however, according to the court is not an absolute right. If a
wife's conduct is such that the court feels that she should not be granted
maintenance, the court may refuse her application. In this case,
according to the court the nondisclosure by the parents of the appellant
and the appellant's accepting the decree as it is, without making any
grudge in respect of the ground that the appellant was suffering from
epilepsy prior to the marriage reflects upon the conduct of the
applicant, and if we take into consideration this aspect what we find is
that the appellant is trying to take advantage of her wrong or fraud and
is trying to harass the respondent by claiming the amount of alimony".
And further, the court held "What we find is that after a decree of
annulment, the respondent has married and he is having a child. Now
this appears to be an attempt on the part of the appellant and her
parents to disturb the marital life of the respondent which he has tried
to settle after annulment of the marriage. This is an attempt to shift the
liability of maintenance by the appellant wife on a husband who was
not fault and who has not consummated the marriage. Even though the
law permits the right of alimony in favour of the appellant, however,
the conduct and circumstances involved in the present case does not
permit us to pass an order of permanent nature in favour of the
appellant". The wife's appeal was, thus, dismissed.

Now some cases relating to the Section 18 of the Hindu Adoption and
maintenance Act, 1956, will be discussed. In Ranjit Kumar

305
Bhattacharya v. Sabita Bhattacharya, 52 the issue before the Court was:
Is a married woman who lived with a married man as his wife, entitled
to damages because she, not being a legal wife is not entitled to
maintenance? Facts of the cases were that a married man lived with a
woman for several years including her to believe that she was his wife,
and also had children from her. Later they fell apart. The woman filed
a suit for maintenance under the Hindu Adoption and Maintenance
Act, 1956, and also under Section 125 of Criminal Procedure Code,
1973. The man denied marriage and his liability to maintain her. The
additional District and session judge held that in view of long and
continuous co-habitation between the parties, there was a strong
presumption of marriage and that mere absence of proof regarding
marriage rites could not dislodge the presumption unless there was
proof of in surmountable obstacles to a valid marriage. A decree of
maintenance for Rs. 500/- per month was passed. Hence, husband
appeal. It was argued that Section 18 of the Hindu Adoptions and
Maintenance Act, 1956, makes no provision for maintenance from a
'husband' with whom a woman has entered into a void marriage. The
Contention was accepted by the court and it was held that the woman
was not entitled to maintenance. The Court, however, ordered the man
to pay damages. According to the court, it is obvious that the man
must have induced her to believe that she is his wife: for such immoral
activities, the applicant should not be spared altogether, though the
damage that had been caused, both physically and mentally, could not
be compensated in any way," the court remarked. He was, accordingly,
directed to pay Rs.30000/- by way of damages. This case is yet another
example of how a woman can be defrauded and entrapped into a

52
AIR 1996 Cal. 301

306
relationship and the man can just get away because under the law they
are not husband and wife. There is a need for a law which should
impose liability on such erring males who defraud women into a
legally void marriage only to abandon them later and then take
advantage of their own illegal/immoral act. As rightly remarked by the
court on this case, no amount of damage can compensate the damage
caused to the woman.

In Boummma v. Siddappa Jeevappa Patarad,53 the main issue was

whether “an arrangement to live separately” be treated as a "divorce
deed". The facts of the case were that a wife filed an application for
maintenance under Section 18 of the Hindu Adoption and Maintenance
Actl956. The parties were married in 1966 and the claim was made by
the wife in 1995. She claimed past maintenance also. She pleaded
desertion and alleged that the husband had another wife and they both
ill treated her and threw her out of the house. The husband resisted the
application on the ground that their marriage had been dissolved by
consent as per "an arrangement to live separately", and in terms of the
provision of Section 18 of the Hindu Adoptions and Maintenance Act,
1956, a claim for maintenance can be made only when their is
subsisting marriage. The trial court held that there was no maintenance
under the provisions of the Hindu Adoptions and Maintenance Act.
Hence the wife appeals, it was held by the court that the second
marriage by itself is desertion of the wife and that fact having been
proved; no further proof of desertion was required. Besides, "an
arrangement to live separately", even assuming that it is proved, could
not have the effect of bringing the marriage to an end. Such agreement

53
AIR 2003 Kant 342

307
was, allegedly, entered into long after the enactment of the Hindu
Marriage Act, 1955. According to the court "a marriage in law can be
dissolved only by a, method recognized in law and not otherwise". The
so-called arrangement sought to be passed off as a divorce-deed" could
not, firstly, be treated as a divorce, and secondly, after the coming into
force of the Hindu Marriage Act, 1955, a marriage could be dissolved
only under the provisions of the Act, of exceptionally, under custom
permitting divorce. In this case there was no assertion by the husband
that there was a divorce under a customs prevalent in the community
to which they belonged. The marriage was thus held to be subsisting
and the wife's claim tenable and bona fide. She was, however, not
entitled to past maintenance but only to maintenance with effect the
cast of her application. In Sheela Rani v. Jagdish Chander Sharma.54 It
was held that the right of residence as part of maintenance is a personal
right of the wife.

(c) Identification of Pitfalls

The Hindu marriage Act, 1955 is social welfare legislation. It was with
this end certain rights were conferred on Hindu women by the Act,
Therefore, such a piece of legislation should be constructed by
adopting progressive and liberal approach and not a narrow and
pedantic approach. However, there is some judicial pronouncement
which shows the strict behaviour of Judiciary toward the aggrieved
spouse. In the matter of implementing the provisions of Act, the
technicalities of the provision must be left to some extent. This view
was adopted by the High Court of Calcutta in Sisir Kumar v. Sabita

54
AIR 2004 Del 158

308
Rani.55

“The word 'Wife' or 'Husband' in Section 25, has been used as

convenient terms to refer to the parties to a marriage whether or not the
marriage was valid or subsisting. Marriage had been used to include a
purported marriage which was void ab initio”.

Here it is also a noteworthy fact which was discussed in Amit Kumar

Sharma v. VIth Add. District Session Judge Bijnor,56 that whether a
wife can also seek maintenance for husband's mother who need to be
taken care of under the same application for maintenance under
Section-25 when mother is staying with her? Here court has taken a
very rigid and technical view and ordered the old mother to file
separate claim under Criminal Procedure Code, 1973 or under Section
20 of the Hindu Adoption and Maintenance Act, 1956. While
awarding the maintenance in an application the court must consider,
inter alia, the needs of the applicant. When the husband's mother is
staying with the estranged wife, the court should have given
consideration to those needs rather than driving her (the mother) to file
separate suits for maintenance under Cr. P.C or the Hindu Adoption
and Maintenance Act, 1955.

The another pitfall which may be noticed is that in some cases the
husband has tried to be absolved of the liability to pay the arrears of
interim maintenance to the wife after allowing dismissal of the main
petition under the Act, e.g. in Lataben Y, Goswami v. S. Goswami,57
that has been discussed earlier in this project. Here the court noticed

55
AIR 1972 Cal.
56
AIR 1999 All
57
AIR 1999 Guj.

309
the husband's trick and wife was found entitled to the arrears. The
husband was not allowed to defeat the claim of wife to the arrears of
maintenance by simply or not proceeding with the main petition.

Another point of discussion regarding the identification as pitfalls in

the application of the provisions of Hindu law is in Ramesh Babu v.
Usha.58 In the instant case, the husband denied the maintenance of
wife on the ground that the wife is entitled to free legal aid The Court
refused the argument of husband and awarded maintenance to wife.
The court caught the trick of husband and gave relief to wife.

In some cases the husband contended against the maintainability of

wife's claim of maintenance under the Hindu Marriage Act, 1955 on
the ground that wife gave up her claim under consent decree for
maintenance in future, e.g. in Geeta Satish Gokarna v. Satish
Gokarna.59 This case came before Bombay High Court, the court,
however, refused to accept the husband's argument and held that "An
agreement in consent decree not to claim maintenance cannot close the
doors for a wife to maintenance thereafter".

The other loophole in the Act is that there is no legislative provision

regarding maintenances to the place of filing of petition or jurisdiction
of court. In the absence of the specific provision regarding this matter
the provisions of CPC is applied, In Sucha Dilip Ghate v. Dilip Shanta
Ram Ghate,60 the issue was: can a maintenance petition by wife under
the Hindu Adoption and Maintenance Act, 1956 be filed at a place
where wife resides. Here Section 20 (c) of CPC was applied and was

58
AIR 2003 Mad.
59
AIR 2004 Bom. 345
60
AIR 2003 Bom. 390

310
held where petitioner resides.

In Popri Bai v. Teerath Singh 61 this case was explicit example of how
unscrupulous husbands try to harass their wives and use the process of
court for achieving this. The court noting the tricks of the husband with
regard to the alimony pendente lite under Section-18 of Hindu
Adoption and Maintenance Act, 1956, ordered the maintenance from
the date of application and not from the date of the order. Thus, there is
some pitfalls in the Hindu Law regarding the maintenance of wife
which have already been pointed out. As the maintenance of the
women is a very sensitive issue, so, it must be handled in a careful
manner, it must be paid sharing the due regard to the intention of the
legislature.

(d) Advocacy for Reforms and Improvements

It is a well known fact that Hindu Marriage Act, 1955 is social welfare
legislation. The judiciary must always while interpreting its provision,
keep in consideration its social welfare nature. A liberal approach must
be adopted in the interpretation of its provisions.

It is also necessary that the tricks of the spouses, for avoiding the
charge to maintenance must be noticed timely so as to implement the
Act sharing the true intention of legislature for its enactment.

Right of a wife to maintenance where a marriage is void had always

been controversial. An amendment in law is in offing where the simple
fact of the parties having gone through a ceremony of marriage would
be enough to entitle the wife to maintenance.

61
AIR 2004 Raj. 128

311
It is also a remarkable point that a subjective approach in order to
avoid the grant of relief must not be allowed by a court. 62 The denial of
maintenance under Section-25 of Hindu Marriage Act, 1955, was due
to the concealment of her epilepsy by the wife before marriage on the
already obtained annulment. Here I am not justifying "wrong",
"misconduct" or "fraud" on the part of any spouse but only indicating
how subjective approach can lead to varying interpretations in order to
deny or granting a relief. Bakul Bai v. Ganga Ram63 case the fraud is
serious but the victim is the wife only. Thus the court, while deciding
this type of matrimonial case, must always take into consideration that
the aim of the enactment should not be frustrated. To avoid the
confusion regarding the maintenance as has been discussed in Geeta
Satish Gokarna v. Satish Gokarna, 64 there must be insertion of the
provision by the legislature regarding the nullification of consent
agreement not to claim maintenance in future as the maintenance has
been construed as an integral part of right to life.

The Hindu Law is social welfare legislation and beneficial in nature, it

has been enacted in comprehensive manner so, it would be unfair not
to have the specific provision regarding the place of filling of petition
or jurisdiction of the court. There must be some specific provision
regarding that to face the problem raised in Sucheta Dilip Ghate v.
Dilip Shanta Ram Ghate. 65 The insertion of the specific provision
regarding the place of filing suit will cause the great help in avoiding
confusion and will reduce the delay in deciding cases.

62
Sudha Suhas Mandan Vankar v. Suhas Ramrao Nandan Vankar AIR 2005 Bom.
63
1988 1 Scale 188.
64
AIR 2004 Bom. 345
65
AIR 2003 Bom. 390

312
4.3 MAINTENANCE OF WIFE UNDER MUSLIM LAW

(a) Analysis of Legislative Provision

The rules regarding the maintenance of Muslim wife has been given in
Sharia. According to the ordinary sequence of natural events, the wife
comes first. Her right of maintenance is absolute. Her right remains
unprejudiced even if she has property or income of her own and the
husband is poor. A husband is bound to maintain his wife, irrespective
of being a Muslim, non-Muslim, poor or rich, young or old if not
young to be unfit for matrimonial intercourse. In addition to the legal
obligation to maintain, there may be stipulations in the marriage
contract which may render the husband liable to make a special
allowance to the wife. Such allowances are called kharch-i-pandan,
guzara, mewa-khori, etc. The husband is bound to maintain if she
fulfils the following conditions: (i) She has attained puberty, i.e., an
age at which she can render to the husband for his conjugal rights;(ii)
She places and offers to place herself in his power so as to allow free
access to herself at all lawful times and obeys all his lawful
commands. It is to be noted that a Muslim wife is not entitled to
maintenance in certain conditions. These conditions are: (i) If she
abandons the conjugal domicile without any valid cause; (ii) If she
refuses access to her husband without and valid cause; (iii) If she
disobedient to his reasonable commands; (iv) If she refuse to live with
her husband without any lawful excuse; (v) If she has been
imprisoned; (vi) If she has eloped with somebody; (vii) If she is a
minor on which account marriage cannot be consummated. (viii) If she
deserts her husband voluntarily and does not perform her marital
duties, and (ix) If she makes an agreement of desertion on the second

313
marriage of her husband.

The wife's right to maintenance ceases on the death of her husband, as

in this condition her right of inheritance supervenes. The widow is,
therefore, not entitled to maintenance during the Iddat of death. But
under Muslim Law, a divorce wife is entitled to be maintained by her
former husband during the period of Iddat,

Now after discussing the maintenance of Muslim wife during the

subsistence of marriage, it is planned to discuss the maintenance of
Muslim divorcee and controversy between the provisions of Criminal
Procedure Code and the Muslim Personal Law on the point of
maintenance of Muslim divorcee. It is pertinent to note that under
classical Islamic law, a divorcee is entitled to get the maintenance
provision but the same will continue till the expiry of the period of
iddat. There is controversy between the classical rules of Islamic Law
and provisions of Criminal Procedure Code regarding maintenance.
The controversy arose when British India took a legislative step to
regulate the institution of maintenance of wife, under Section 488 of
the old Criminal Procedure Code, 1898, the husband might be
compelled to make a monthly allowance not exceeding Rs. 500 per
month as maintenance to his wife. But the wife's right to maintenance
under this Section could be defeat by the husband by obtaining the
divorce under the personal law. The provision under Section 488 of the
old Criminal Procedure Code, 1898 was very much in the line with the
sprit of Islamic law, where it furnished a speedy remedy for securing
maintenance to all Indian wives neglected by their husband on certain
grounds including bigamy. In several cases the separate maintenance
orders were granted in favour of the wives, but in many cases where a

314
maintenance order under Section 488 of Criminal Procedure Code,
1898 were granted to Muslim wife, her husband subsequently divorced
her by Talaq, consequently the maintenance order so granted ceased to
be effective after the expiry of iddat period as per the rules of Muslim
law. This situation caused hardship and opened the gate for a long
battled between the Sharia on one side, Criminal Procedure and the
Indian courts on the other. To remove conflict, the joint committee
recommended that the benefit of the provisions should be extended to a
woman who has been divorced by her husband and it should continue
so long as she has not been remarried after the divorce. Accordingly,
the uniform law of maintenance was introduced to all citizens of India
through the amendment in criminal procedure code in 1973.
Accordingly, clause (b) of explanation to Section 125(1) was enacted,
which laid down that for the purpose of maintenance "wife" includes a
woman who has been divorced by or has obtained a divorce from her
husband and has not remarried, however, Section 127 (3)(b) was added
to provide protection to Muslims and Muslim Personal laws. This code
under chapter IX, provides a uniform law of maintenance through the
amendment in Criminal Procedure Code in 1973 the uniform law of
maintenance was introduced to all citizens of India. The definition of
wife as given in explanation of Section 125 of the Criminal Procedure
Code, 1973 is noteworthy for the purpose of analysis: •"Wife includes
a woman who has been divorced by or has obtained a divorce from her
husband and she has not remarried". This definition of the wife was
objectionable to the scholars to the Islamic matrimonial jurisprudence
as the same was foreign to the Islamic concept of wife and Indian
Muslim resented and thus their resentment was duly recognized. This
definition of wife laid down by the legal fiction on the basis of which

315
the two strangers being of opposite sex (after the divorce on the expiry
of lddat period) are treated to be the husband and wife under Section
125 of the Cr. P.C. for the purposes of maintenance even after divorce.
When the bill to this effect was in process it was subjected to tooth and
nail opposition by Muslim members in the legislative house viz,
Ibrahim Sulaiman Seth, G.M. Banatwala, and others. They objected the
explanatory clause defining the term 'wife' and they advanced potent
advocacy that the Muslim must be exempted from the ambit of the
definition of wife, but the strong defense of the then law minister and
minority of opposition including Muslim members came in the way
and resultantly could not achieve the desired goal. The law minister
painted out that the explanation in Section 125, of the Cr.P.C. did not
affect the civil status of husband and wife and manner and besides this,
made the following observation: "we have received a lot of
representations which show that after divorce, woman are generally in
very bad plight and it is a very difficult social and humanitarian
problem, I do not think that Muslim Personal Law comes into the
problem". However, the advocacy of law minister and other supporter's
plea could not satisfy, and a proposed modification was vehemently
opposed by the numerous Section of Muslims.

The definition of the wife was objected by the scholars Islamic

matrimonial jurisprudence as the same is foreign to Islamic concept of
wife and Indian Muslim resented and thus their resentment was duly
recognized, Resultantly, Section 127 (3)(b) was added to satisfy the
Muslim community's resentment and the same was desired to work as
exception, this empowers the Magistrate to cancel the order to
maintenance passed under Section 125 of the code. If the divorce

316
women has received whether before or after the date of the said order,
the whole or the sum which was payable under customary or personal
law applicable to parties. 66 The Provision for maintenance of wives,
whether married or divorced, who are unable to maintain themselves is
a social welfare measure applicable to all people irrespective of caste,
creed, community or nationality. 67

In Bai Tahira's case, the supreme Court did not turn to the Holy Quran
but confined itself to Section 125 considering it as a secular provision
and came to the conclusion that the claim of maintenance by the
divorcee was indefeasible be the husband Hindu, Muslim or others, so
long as the spouse had not remarried and had no means to maintain
herself. The very next year the court reinforced it‟s earlier decision in
Fuzlunbi’s68 case in the following words:

"Whatever be the facts of a particular case, the Criminal Procedure

Code by enacting Section 125 to 127, charges the court with the
humane obligation of enforcing maintenance or its just equivalent to ill
used wives and the castaway ex-wives, only if the woman has not
receive voluntarily a sum at the time of divorce, sufficient to keep her
going according to the circumstances of the parties".

Section 127 (3) (b) of Criminal Procedure Code lays down that
"Where any order has been made under Section 125 in favour of a
woman who has been divorced by or has obtained a divorce from her
husband, the Magistrate shall cancel such order of maintenance if he is
satisfied that the divorced woman has received the whole of the sum

66
Mohammad Shabbir, Muslim Pesonal Law and Judiciary (Ed.. 1st , 1988, Allahabad)
67
Bai Tahira v. Ali Husain, AIR 1979, SC 362.
68
Fuzlunbi v. Kader Vali, AIR 1980, SC 1730.

317
whether before or after the date of such order under the personal law
applicable to the parties.

The position as finally enacted laid down that through court could
grant maintenance to a divorced wife, at the time of so doing, they
should give due consideration as to whether she had already realized
from her husband in full, her post divorce entitlement under any
customary or the personal law of the parties.

The perusal of the legislative history of Section-127 (3) (b) made it

clear that this provision was brought to provide to safeguard to
Muslims and their persons law. It empowers the magistrate to cancel
the order Section 125 of Criminal Procedure Code, 1973 if the
divorced women who has received whether before or after the date of
said order the whole of sum which was payable under any customary
or personal law applicable to those parties. Mr. Justice Krishna Iyer
further states: "Neither personal law nor other salvationary plea will
hold against the policy of public law pervading Section

127 (3) (b) as much as it does Section!25. So a farthing is not substitute

for a fortune nor naive consent equivalent to intelligent acceptance".
Thus the impact of Sections 125-127 of the Criminal Procedure Code,
1973, on the maintenance rights of Muslim ex-wives has been the
subject of interpretation through Indian judiciary. The ruling laid down
in Bai Tahira's case and Fuzlunbi's case, and their objection ability to
Muslims are well known and to get the desired result in 1981. The
Supreme Court was asked to reconsider these ruling in Mohd Ahamd
Khan v. Shah Bano Begum. 69 However it added fuel to the fire by

69
AIR 1985, SC 945.

318
laying down: "Although the limits of the Muslim Husband's liability to
prove for maintenance of the divorced wife is up to the period of Iddat
it does not contemplate or countenance the situation envisaged by
Section 125 of the code, it would be incorrect and unjust to extent the
above principle of Muslim law cases in which the divorced wife is able
to maintain herself. The husband liability ceases with the expiration of
period of Iddat. But if she is unable to maintain herself after the period
of Iddat she is entitled to have recourse to Section 125 of the Code”.

But chief Justice of Supreme Court Mr. Justice Y.V. Chandrachud

going for beyond Mr. Justice Iyer's thinking intruded into Muslim
Personal Law saying the said special provision of the code totally
ineffective. Two points mainly alarmed the Muslim of such judgment
for the Alleged attempt of the judge to "reinterpret" certain Qur‟anic
verses and Second admonition to the state in respect of the uniform
civil code.

As a result religious sentiments of Muslim were not only injured by the

wording and purport of the Shah Bano's judgment, but also much more
by its projection on an anti - Islamic law ruling of the highest court of
justice in the country. There upon Muslim organizations and
individuals under the leadership of the All India Muslim Personal law
Board started a country wide agitation and caused the majority of
Muslim citizen in India to demand statutory protection of their
personal law.

Some relevant provisions of Muslim Women (Protection of Rights on

Divorce) Act, 1986 regarding Maintenance of Muslim Divorce are in
need of separate treatment. Section 3(l)(a) of Muslim Women

319
(Protection of Rights on Divorce) Act, 1986 lays down that a divorced
Muslim wife 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. Section 3(1) (b) of Muslim Women (Protection of
Rights on Divorce) Act, 1986, lays down the condition where divorced
Muslim wife herself maintains the children born to her before or after
her divorce, In this condition she will be entitled to 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. Section 3(l)(c) of Muslim Women (Protection of Rights
on Divorce) Act, 1986 lays down that a Muslim divorced wife shall be
entitled to an amount equal to the sum of mahr or dower agreed to be
paid to her at the time of her marriage or at any time thereafter
according to Muslim law. Section 3(l)(d) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 lays down a Muslim
divorcee will be entitled to all the properties given to her before or at
the time of marriage or after the marriage by her relatives or friends or
the husband or any relatives of the husband or his friends. Section 3(2)
of this act lays down that where a reasonable and fair provision and
maintenance or the amount of mahr or dower due has not been or
made or paid or the properties referred to in clause (d) of sub-Section
(1) have not been delivered to a divorced woman on her divorce, she
or any one duly authorized by her may, on her behalf, make an
application to a Magistrate for an order for payment of such provision
and maintenance, mahr or dower or the delivery of properties, as the
case may be.

Section 4 of Muslim Women (Protection of Rights on Divorce) Act,

320
1986, deals with the rules as to order for payment of maintenance. Sub-
section (1) of this Section lays down that notwithstanding anything
contained in the forgoing provisions of the Muslim Women (Protection
of Rights on Divorce) Act, 1986, or in any other law for the time being
in force, where the Magistrate is satisfied that a divorced woman has
not re-married and is not able to maintain herself after the iddat period,
he may make an order directing such of her relatives as would be
entitled to inherit her property on her death according to Muslim law to
pay reasonable and fair maintenance to her as he determine fit and
proper, having regard to the needs of the divorced woman, the standard
of life enjoyed by her during her marriage and the means of such
relatives and such maintenance shall be payable by such relatives in the
proportions in which they would inherit her property and at period as
he may specify in his order. There is a proviso in this Section which
provides that where such divorced woman has children, the Magistrate
shall order only such children to pay maintenance to her, and the event
of any such children being unable to pay such maintenance; the
magistrate shall order the parents of such divorced woman to pay
maintenance to her. The second proviso of this Section provides further
that if any of the parents is unable to pay his or share of the
maintenance ordered by the Magistrate on the ground of his or not
having the means to pay the same the Magistrate may, on proof of such
inability being furnished to him, order that the share of such relatives
in the maintenance order by him be paid by such of the order relatives
as may appear to the Magistrate to have the means of paying the same
in such proportion as the Magistrate may think fit to order. Sub-section
2 of this Section lays down that where divorced woman is unable to
maintain herself and she has no relatives as mentioned Sub-section (1)

321
or such relatives or any one of them have not enough means to pay the
maintenance ordered by the magistrate or the other relatives have not
the means to pay shares of those relatives whose shares have been
ordered by the magistrate to be paid by such other relatives under the
proviso to sub-Section (1), the Magistrate may, by order direct the
State Wakf Board established under Section 9 of the Wakf Act (29 of
1954), or under any other law for the time being in force in a State,
functioning in the area in which the woman resides, to pay such
maintenance as determined by the under sub-Section (1) or, as the case
may be, to pay the shares of such of the relatives who are unable to
pay, at such periods as he may specify in his order.

Section 5 of the Muslim Women (Protection of Rights on Divorce)

Act, 1986, gives the option to divorced Muslim wife to be governed by
the provisions of Section 125 to Section 128 of Criminal Procedure
Code, 1973, but the condition is that there must be an agreement
between the husband and wife by an affidavit, that they would prefer
to be governed by the provisions of Section 125 to Section-128 of
Criminal Procedure Code, 1973. It is also necessary that the declare
must be made on the date of the first hearing. The explanation of this
Section says that for the purpose of this Section, "date of the first
hearing of the application" means the date fixed in the summons for
the attendance of the respondent to the application.

Section 7 of the Muslim Women (Protection of Rights on Divorce)

Act, 1986, is the transitional position which lays down that every
application by a divorced woman under Section 125 or under Section
127 of the Criminal Procedure Code , 1973 (2 of 1974), pending
before a Magistrate or the commencement of this Act, shall,

322
notwithstanding anything contained in that code and subject to the
provisions of Section 5 of this Act, be disposed of by such magistrate
in accordance with the provisions of this Act.

(b) Evaluation of judicial pronouncements

The judicial attitude towards the application of maintenance provisions

to Muslim wives and divorcee has created a crisis. The interpretation
of Section 125 and 12 (3) (b) of the code as applicable to Muslim has
been considered by the Supreme Court and High Courts but the
decision are some how opposed to the Spirit of Islamic Law. The
courts have dealt with the following issues from time to time.

1. Whether Section 125 of the code is violative of Articles 14 and

19, offends the fundamental rights under Articles 25 and 26 of
the Constitution?

2. Whether the definition of the wife envisaged in explanation (b)

of Section 125 (1) of the code is in conflict with the personal law
of Muslims of India?

3. Whether a Muslim divorce can seek the benefit of Section 125 of

the code?

4. Whether the payment of mahr by a Muslim satisfied the

requirements of Section 127 (3) (b) and obliged the Magistrate to
cancel a maintenance order made in favour of a Muslim
divorcee? The Criminal Procedure Code, 1973 provides a
uniforms law of maintenance. The new provisions enjoin
payment of maintenance to divorce till their remarriage of death.
It imports to create an artificial relation of husband and wife

323
 only for the purpose of maintenance after divorce.70 Section 125
of the Criminal Procedure Code, 1973 by means of an
explanation sought to extend the magisterial power to provide
for maintenance of an ex-wife also.

However, an exception in the form of Section 127 (3) (b), this

empowers a magistrate to cancel the order of maintenance made under
Section 125 of the code, if the divorced women has received, whether
before or after the date of the said order, the whole of the sum which
under any customary of personal law applicable to the parties was
payable.71

Where any order has been made under Section 125 of Cr. P.C. in
favour of a women who has been divorced by or has obtained a divorce
from or her husband, the magistrate shall if he is satisfied that the
women has been divorced by her husband and that she has received,
whether before or after the date of order, the whole of the sum which
under any customary or personal law applicable to the parties, was
payable on such divorce.

Under the new code the questions arise:

1. Whether a Muslim divorce can seek to the benefits of Section

125?

2. What is the 'sum due' from the husband to the wife on divorce
under the Muslim law?

3. If the husband paid the whole of sum is there any justification in

70
See Chapter 9 of the new code- 1973.
71
See 127 93(b) of the Cr. PC.

324
 refusing the benefits conferred by Section 127 (3) (b)?

In 1976, the Division Bench of Kerala High Court in Kunhi Moyln

Case72 held that under the new code the Muslim divorced wife is
entitled for maintenance under Section 125 of the new code after the
Iddat period. In U.A. Khan 73 the Karnataka High Court observed that
the maintenance for some additional period beyond the period of Iddat
becomes available to divorced Muslim women under Section 125 of
the code. This additional benefit does not at all in the conflict with the
right she has under the Mohammaden Law.

For the first time in Kunhi Moyin's case, the division of bench of
Kerala High Court has held that the payment of maintenance during
'Iddat' or the payment of Mahr will not exonerate the Muslim Husband
from the liability towards the divorced wife under Section 125. Justice
Khalid speaking on behalf of division Bench gave the social purpose of
legislation and observed:

"The new definition (of wife) does not violate the fundamental rights
guaranteed under article 25 (1) of the constitution. The definition of
Section 125 (1) comes with the expression "providing for social
welfare and reform", legislation contained in Art 25 (2) of the
constitutions, and hence the challenge of Articles 25 is not available
for the petitioner. The Criminal Procedure Code, 1973 transcends the
personal law of the parties".

The Constitution is openly and determinedly secular. Religious

discrimination on the part of the state is forbidden. 74 Freedom of

72
Kunhi Moyin v. Pathamma, (1976) KLT 92, 1976 MLJ (Criminal) 405.
73
U.A. Khan v. Mahboobunnisa (1976) Cr. L. 395.
74
Article 15, 16, 29(2), 30(2) of the Indian Constitution

325
Religion is guaranteed. 75 Dr. Ambedkar in the constituent Assembly
had expressed his awareness of the situation that would crop out in the
field of social welfare legislation and social welfare programs of a
government.

In Iqbal Ahmad Khan 76 Case, the Allahabad High Court held that
Section 125 of the code is not repugnant to Article 25 of the
constitution. The court further observed that the history of applicability
of Muslim law shows that the payment or non-payment of maintenance
to one's wife could never be regarded as a matter of personal law.

In Isac Chandra Palker77 Case, the division bench of the Bombay High
Court held that the maintenance right conferred upon the divorcee even
after the Iddat period, under Section 125, is additional and independent
right. The provisions of the Shariai Application Act , I937 and Section
125 of the Cr.P.C. can stand together as there is no inconsistency
between them.

Justice R.K. Shukla of Allahabad High Court in Mohd Yameen 78 Case,

observed that Section 125 is applicable and enforceable whatever may
be the personal law of parties. Thus Kerala, Bombay, Calcutta and
Karnatka High Court have taken the view that the Muslim Divorcees
are entitled to the maintenance under Section 125 of the code even
after the Iddat period. However, later Bombay, Andhra Pradesh and
Full bench of Kerala High Court have taken a contrary view holding
that if the husband satisfied the magistrate in proceedings under
Section 125 of the code, that he has complied with requirements of

75
Article 25, 26, 28m 29 and 30(1) of the Indian Constitution
76
I.A. Khan v. State of UP 1980, Cr. LJ (80 NOC) All 34.
77
Isac Chandra Palker v. Nayamat Bi (1980) Cr. L.J. 1180
78
Mohd Yameen v. Shamim Bano (1984) Cr. LJ 1297

326
Section 127 (3) (b), the divorced wife does not have any subsisting
right of maintenance.

The Supreme Court of India in case of Bai-Tahira v. Ali Hussain 79

found itself in dilemma at the time of interpreting Sections, of Criminal
Procedure Code, 1973. The facts of the case are enumerated as
follows:

The respondent Ali Hussain (Husband) married the appellant Tahira

(Wife) as a second wife, way back in 1956, and after few years had a
son by her.

The initial warmth vanished and jealous is of triangular situation

erupted marrying mutual affection. The respondent divorced the
appellant around July 1962.

A suit relating to a flat in which the husband had housed the wife
resulted in a consent decree, which also settled the marital dispute. For
instance is recited that the respondent had transferred the suit premises,
namely a flat in Bombay to the appellant and also the shares of the
cooperatives housing society, which built that flat. The amount of
Mahr (money Rs. 5000/-) and maintenance of Iddat period was also
paid to the appellant.

The plaintiff declares that she has no claim or rights what so ever
against the defendant or against states or properties of the defendant. 80

After the enforcement of code81 wife made a claim for maintenance

from her husband under the Section.

79
AIR 1979 SC 362
80
127 (3) (b) of Cr. PC
81
See Section 125 of Cr. PC.

327
In the instant case, supreme court surprisingly ignored the express
legislative intention and connected the amount of dower payable at the
time of divorce under the personal law with the amount of maintenance
which accordingly to the court must sufficient to maintain the divorced
women.

The Apex Court Bench, consisting of Justice Tulza Pulkar and Justice
Pathak honoured the appeal of Bai Tahira 's maintenance and on
behalf of the court justice Krishna Iyer observed the following.

He further says: The payment of illusory amount by way of customary

or personal laws requirement will be considered in the reduction of
maintenance state but can not annihilate unless it is reasonable
substitution. The observation of the Supreme Court has amended some
words in Section 127(3)(b) giving meaning t it that the magistrate is
empowered to cancel such order on the satisfaction that such whole of
the sum is sufficient to do the duty of the wife and if it is not. It shall
any be adjusted to be claim. Now in effect 'magistrate shall cancel' has
turned to be 'magistrate may cancel' and after the words 'whole of the
sum' the words 'sufficient to do the duty of maintenance' are inserted
by construction.

In Fazlun Bi v. Khader & others82, the Apex court again followed the
ruling in Bai Tahira's case. Where the husband had divorced his wife
& paid Rs. 500/- as a Mehr and Rs. 750/- as a maintenance for the
Iddat period. The Andhra Pradesh High Court made a clear distinction
from the issue raised in Bai Tahira's case. In the instant case the
husband did not raised any plea based on Section 127 (3) (b) of Cr.

82
(1980) Cr. LJ 1249.

328
P.C. But the Supreme Court reiterating its previous ruling observed
that whether or not the plea was explicitly answered in that case, the
wife was given right to demand maintenance from her husband. The
facts of the case are enumerated in the following manner:

Fazlun Bi, the appellant married Khader Wall, the respondent in 1966
and during their conjugal relationship a son was born to them. Due to
some misunderstanding and strain relationship between the couple, the
appellant left the house of her husband and went to her father's house.
She prayed for maintenance, which was granted by lower court and
upheld by the High Court. After this the respondent divorced his wife
unilaterally and paid her amount of 'Mahr' which was Rs. 500/- and
the maintenance for the period Iddat which Rs. 750/- on the basis of
divorce. The appellant Fuzlun Bi was ordered not entitled for
maintenance as her 'Mahr' money and maintenance for 3 months was
already paid. The session judge and High court also upheld the order
of the magistrate. The appellant landed in Supreme Court against this
judgment. The judgment was delivered by justice Krishna Iyer on
behalf of Justice Chennappa Reddy & Justice A.P. Singh. The
Honorable justice Krishna Iyer again expressed. That the payment of
personal law amount as envisaged by Cr.PC 83 should be reasonable
and not illusory. According to justice Krishna Iyer: "even by
harmonizing payments under personal and customary laws with the
obligation under Section 125 to 127 of the liquidated and not a illusory
amount will released the former husband from the continuing liability
only if the sum paid is sufficient to maintain the former wife and
salvage from the destitution. The payment of amount, customary or

83
Section 127(3)(b)

329
others, contemplated by the measure must inset the intent of
preventing destitution and providing a sum which in more or Jess the
present worth of the monthly maintenance allowances the divorces
may need until death or remarriage overtake her. The policy of the law
about neglected wives and destitute divorcees and Section 127 (3) (b)
takes care to avoid double one under custom at the time of divorce and
another under Section 125, A farthing is no substitute for a fortune nor
naive consent equivalent to intelligent acceptance",

Mahr as defined by Muslim law is a token of respect for a Muslim

women and payment of the Mahr would be payable by the husband in
the loss of connubial relationship. 84 The principle laid down in Fazlun
Bi and Bai Tahira’s case violate the substantive Islamic law of
maintenance. The approach of SC reflects the judicial legislation and
not judicial interpretation. It is well established fact that constitution of
India is the supreme law of the land. Therefore, the courts are in duty
to follow the constitution rather then to deviate from the very sprit of
the Constitution. Constitution is the source from which every
institution derives authority admits the theory of separation of power.
Therefore, constitutionally the approach of the Apex court in the
instant case is not legitimate. There is an experiment to give the
harmonious construction to the Section 125 and 127(3)(b) or Cr. P.C.
so as to achieve the true intention of the legislation. Section 127(3)(b)
was mean to provide protection to Muslim Women and dilute the evil
effect of the definition of the 'wife' given under Section 125 of Cr.P.C.
But it is very unfortunate that judiciary could not take the cognizance
in number of cases of conflict between Muslim personal law and

84
Fazun Bi v. Khader and another (1980) Cr. LJ 1249

330
Section 125 of Cr.P.C. There is a clear cut conflict between Section
125 of Criminal Procedure Code, 1973, and Muslim law. The court has
restricted itself to only one aspect of the problem, that is right of a
women saying that it is right of the women conferring an additional
right is not in conflict with Muslim law, But the court failed to
consider this important aspect, the duty of husband under Islamic law
under Islam he is under obligation to pay maintenance till Iddat period
and not after that period and divorce. Where as Section 125 required
conversely.

Moreover the provision of the Cr.P.C. are applicable to all Indians

irrespective of their cast, creed and religion. In order to prevent any
grievance to any portion of state population by any state law or action
special enactment are made to harnessed any excessive effect on their
faith and sentiments. Thus in case of any inconstancy with Section 125
of Cr.P.C. and the Shariyat Application Act, 1937, latter should
prevail. The definition of wife leads to the fact that a divorced Muslim
woman irrespective of more resolution of marriage is entitled to
maintenance up to the marriage or death.

Therefore, the correct construction of Section 127(3)(b) which

impliedly protects the Muslim personal law, is that it is applicable to
all the modes of the Muslim divorce determining the period of
maintenance of divorced women. Further, Section 127(3)(b) does not
deal with the case in which divorce has been obtained through the
process of law.

331
Position after Shah Bano’s Judgment

The unanimous decision of a five judge's constitution Bench of the

Supreme Court in Mohd Ahmad Khan v. Shah Bano85 has evoked
strong reaction among the Muslim and has also created the crisis. The
facts of the case are as follows:

Mohd Ahamd Khan an advocate of Indore married Shah Bano in the

year 1932. In the course of matrimonial wedlock three sons and two
daughters were born to Shah Bano, lived as husband and wife for more
than four decades. But then Mohammad Ahmad Khan drove Shah
Bano of the matrimonial home. In the year 1975, in April 1978. after
Shah Bano filed a petition under Section 125 of the code in the court of
Judicial Magistrate, Indore asking for maintenance allowing from her
husband of Rs, 500/- per month. Six months later filing of petition by
Shah Bano her husband on November 6, 1978 divorced her by an
irrevocable Talaq then Mohd Ahamd Khan himself, opposed the
petition on the ground that he had already divorced her and paid her a
sum of Rs. 3000/- on account of Mahr and maintenance for the period
of Iddat. In August, 1979 after hearing both the sides the magistrate
overruled the defence of Mohammad Ahmad Khan and passed an order
granting Shah Bano a sum of Rs. 25/- per month by way of
maintenance. She was not happy about the magistrate order as the
income of the husband was around 60,000/- per year. Therefore, she
filed an application in M.P. High Court to enhance this amount. The
High Court enhanced the maintenance allowance to 179, 00 per month.
Aggrieved by this order of the High Court, Mohammad Ahmad Khan
filed on appeal in the Supreme Court which was heard by a Bench

332
consisting of Justice Murtaza Fazal Ali and Justice A. Varadh Rajan
observed that Bai Tahira86 and Fazlun Bi,87 cases where were not
rightly decided, therefore, they referred this appeal to a larger Bench
by an order.

In this case Mohammad Ahmad Khan sought to defend his case in the
following enumerated grounds:

1. Under Muslim law a divorced women is entitled to maintenance

during the period of Iddat only and not there after.

2. Since, Mohd. Ahmad Khan has already paid her the dower
money which was according to him sum payable on divorce
within the meaning of Section88 of Cr. P.C. and maintenance
order could be passed against him or maintained any longer the
Five Judges Constitutional Bench of the Supreme Court, after
wide ranging discussion based arrangement by the courts as well
as by several intervenes including the All India Muslim Personal
Law Board, animously upheld a single judgment delivered by
the chief justice Chandrachud.

3. A divorced wife is entitled to apply for maintenance under

Section 125 of the code. A Mahr is not a sum which under
Muslim law is payable on divorce. So Mahr does not fall in the
ambit of Section 127 (3) (b) of the code. If there is only conflict
between the Section 125 of the code and Muslim Personal Law,
Section 125 overrides the personal laws. The government

85
AIR 1985 SC 945
86
Bai Tahira v. Ali Husain
87
Fazlun Bi v. Khader AIR 1980 SC 1730
88
Section 127 (3) (b)

333
 should implement Article 44 of the Constitution of India the
written arguments of the appellant are raised as follows. 89

It has been contended on behalf of the intravenous supporting the

respondents by Sri Danial Latiti, Senior Advocate that under the
Muslim Personal Law there is liability on the part on the former
husband to his divorced wife. He relied on verse 241 of chapter II of
the holy Quran. Which says; "For divorced women maintenance
should be provided on a reasonable scale this is a duty of righteous".
All that has been stated in the various verses of the Qur‟an does not
contain the percepts of the law. Is the Prophet (S.A.W.) ordained,
should be followed by the Muslim as regard instances in point what
Shafi which founder of Shafi School said can be pursued? He is of the
view that no maintenance is due to a woman repudiated by irrevocable
divorce unless she is pregnant. It is clear that prophet (S.A.W.) himself
made if clear that in case of irrevocable divorce no maintenance will
be payable to divorce.

Second caliph has recorded, a percept of the Prophet (S.A.W.) to the

effect that maintenance is due to a women divorced thrice during her
Iddat. The Hedaya 90 says, there are also a variety of traditions of same
purpose.

The Holy Quran 91 says, divorced women shall wait concerning them
selves three monthly periods. Baillie has also state that a divorced
women is entitled to maintenance during the period of Iddat. Further,
so many event of authors have stated that divorced women is entitled

89
Daniel Latifi “Muslim Law” XXI A.S. I.L. (1985) pp. 389-390 see also journal of Islamic and
Comparative Law Quarterly Vol. No. 2 (1985) pp. 115-117.
90
Chapter XV p. 145.
91
Verse 228.

334
to maintenance only during the period of Iddat.

The question of Mata in the Quran92 the nearest English equivalent is

the word, 'Provision', the essence lies in that 'mata' has no connotation
of recurrence as maintenance in Islam lays down that on divorce,
women should be treated with due respect and apart from the husband,
the later is exerted to make suitable gift at the time of separation. It is
significant to point out the word 'mata' as temporary conventions in
sura 40 verse 39. The verse says, "O my people: thus life of the present
is nothing but (temporary) convenience".

The period of three months after divorce for women without

menstruation. (Surah-talaq: Aiyat-4) of the Holy Quran which
prescribed.

"Such of you women as have passed the age of monthly course for
them the prescribed period, if he has any doubt is three months, and for
those who have no course (it is the same). 93

The period till delivery for those pregnant above Aiyat further
prescribed:

"for those who carry, (life within their

wombs), there period is until they deliver
their burden's and for those who fear God, he
will make their path easy" . 94
The fact is that only Islamic Sharia does not leave any women married,
divorced women, widow without adequate protection even for a day.
The rules relating for maintenance under Islam are based on definite
and firm ground. The close relative of a divorced women in necessities

92
Surah 2 Ayar 241.
93
Surah Talaq Verse 4.

335
are obliged to maintain her and this obligation calculated as per the
schemes of inheritance. Thus the judgment in Bai Tahira's and Fazlum
Bi's case went against the Islamic law on divorce and maintenance
which has been expressly protected by the Shariat Act, 1937.

Enactment of Muslim Women (Protection of Rights on Divorce)

Act, 1986.

In 1986, it was the after a month of Shah Bano's judgment when the
parliament had to mend not only to renovate the maintenance
provisions but to pass a full fledged Act, relating to the maintenance
for Muslim divorcee in accordance with Shariat When the Shah Bano's
case was decided by the Apex judiciary a great controversy in Muslim
circle denoted and the Muslims depreciated and deprecated to accept
the judgment thereof and further demonstrated that the line of
reasoning adopted by the judiciary was wholly unjustifiable and
contrary to the Shariat. Under the banner of All India Muslim Personal
Law Board, a countrywide, agitation and protest was started and same
germinant the consensus of the majority of Muslim of India in favour
of the move to demand statutory protection of their personal law
relating to maintenance.

The Muslim women (Protection of Rights on Divorce) Act, 1986

inspite of some shortcomings is by and large in consonance with
Muslim law of maintenance and secures maintenance rights of Muslim
married women to a great extent. The Apex court in such cases not
merely ignored legislature history and the intention of the legislation
but also violated the well established rules of harmonious construction.

94
Ibid.

336
In the name of women emancipation the Supreme Court at so many
occasions tried to violate the personal laws of Muslim and encroached
the universally accepted principles of Quran and Hadith.

Judicial Scenario after the enactment of Muslim Women

(Protection of Rights on Divorce) Act, 1986.

Now some cases would be discussed to show the judicial scenario after
enactment of Muslim Woman Act, 1986.

Md. Yunus v. Bibi Phenkani Alias Nisa,95 the court was required to
decide whether the right under Section 125 of the Cr. P.C. to claim
maintenance subsists even after the Act of 1986. It was held by the
court that Section 3 (1) (a) of the Act 1986 curtailed the right of a
divorced Muslim women to get maintenance for the period oflddat
only. It was further said that the right to get maintenance from her
husband given to a wife under Section 125 of the court until she
remarried has been impliedly repealed in case of a divorced Muslim
wife governed by the provision of Section 3 (1) (a) of the Act of 1986.

In Haji Farzand Ali v.Noor Jahan,96 a women filed an application for

the maintenance of herself and her 3 children. The magistrate granted
rupees 300/- for children. The husband filed and appeal against the
order arguing that the right of he children ancillary of 1986 Act, the
children right to maintenance under Section 125 also was not
maintainable. Negating the contention the court held that the children's
right was independent of mother. All the clauses (a) (b) (c) and (d) of
Section 125 have used the conjunction 'or1 which is significant and

95
(1987) 2 Crimes 241.
96
(1988) Cr. P.C. L.J. 1421 (Raj)

337
shall each claimant's right is independent.

In A.A. Abdullah v. A.B. Mehmoona Saiyad, 97 it was held that a

divorced Muslim woman is entitled to maintenance after
contemplation of her need and the maintenance is not limited only up
to Iddat period. The phrase used in Section 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 women gets sufficient means of livelihood after the divorce
and that she does not become destitute or is not thrown on the street
without a roof over her head and without any means of sustaining
herself and her children. It was also held that the word 'within' under
Section 3 (1) (a) could not be read as for or during therefore the
husband was held to be liable for making reasonable and fair provision
and maintenance to the wife even after the period of Iddat.

In AbidAli v. Mst Raisa Begum,98 the division bench of Rajasthan High

Court has given the following view. In this case the question before the
court was the effect of the provision of Act 1986 on an order passed
under Section 125 of Cr.P.C. The division bench held that the Act of
1986 does not contain any saving clause for the right created by an
order passed in favour of divorced Muslim women. The Act has
completely obliterated the right of such women to get maintenance.
The appeal without saving such right and that right now can not be
enforced under Section 125 clause (3) of the code. A brief reference
may also be made to the decision in Abduallah Gafoor v. A.U.
Pathumma Bibi, 99 it was held by the court that divorced Muslim

97
AIR 1988 (Guj.) 141.
98
(1988) L. Raj. L.R. 104
99
(1989) Cr. L.J. 1224 Karnataka

338
women is not entitled to invoked Section 127 of the Criminal
Procedure code for seeking enhancement of maintenance after 19 May,
1986, the date on which the Act of 1986 came in to force. The court
further held that even though Section 125-127 of the code have not
been repealed by the Act of 1986, it can be said that the Act of 1986
supplemented, widen, or enshrined the contents of the rights ensuring
to the wife under the code.

In Ali v. Sufaira,100 it was held that under Section 3 (1) (a) of the Act of
1986, a divorced Muslim woman is not only entitled to maintenance
for the period of Iddat from her former husband but also to a
reasonable and fair provision for her future. In this case the distinction
was made between what is reasonable what is reasonable and fair
provision and maintenance which is payable to the divorced women.
The learned judge concluded that: "It is clear that the Muslim who
believes in god must give a reasonable amount by way of gift or
maintenance to the divorced lady. The gift or maintenance which is
payable to the divorced women." The learned judge concluded that: "It
is clear that Muslim who believes in God must give a reasonable
amount by way of gift or maintenance is not limited to the period of
Iddat it is for her future livelihood because God wishes to see all well".

The court, therefore held that under Section 3 (1) (a) a divorced
Muslim not only entitled to the maintenance for the period of Iddat
from her former husband but also to a reasonable and fair provision
for her future and directed the Magistrate to pass orders giving effect
to this intention of the legislature.

100
(1988) 3 crimes 147.

339
Judiciary on the Application of the Muslim Women
(Protection of Rights on Divorce) Act, 1986

An impression is there that the Act undoes the gains of divorced

Muslim Woman. It is not correct as a close analysis shows that the Act
does nothing like throwing out of window the Shah Bano’s verdict or
the legislative progress enshrined in the provisions of Criminal
Procedure Code, 1973. The main features of this enactment may be
summed up as the Act accords relief the divorcee. It does not say that
Mahr is a consideration for divorce for is the sum referred to in
Section I27(3)(b) Cr. P.C. It does not lay down that no maintenance is
to be paid to the divorcee after iddat or that she is to be abandoned for
the life after iddat.

The preamble of Act says that it is 'an Act to protect the rights of
Muslim Women who have been divorced and further to provide for
matters, connected and incidental thereto. Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, entitles a
divorced woman to (i) reasonable and fair provision, and (ii)
maintenance to her, (iii) provision and maintenance to her children for
two years, (iv) Mahr amount and (v) All properties given to her before,
at the time and after her marriage. Out of these, the 'provision' and
'maintenance' are to be made and paid to her within the Iddat period by
her former husband.

Does it mean that the maintenance is to be paid to her only during the
Iddat period? The original controversy resurrected in Arab A. Abdullah
v. Arab Arab Bail Mohmuna Saiyad Bhai.101 In the instant case, the

101
AIR 1988 Guj 141

340
matter takes into consideration was the validity of an order passed
under Section 125 of Cr P.C. in view of Muslim Women (Protection of
Rights on Divorce) Act, 1986. The main questions arose in the instant
case for the determinations are: (i) Whether by the enactment of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, the
orders passed by the Judicial Magistrate of First Class, under Cr, P.C.
ordering the husband to pay the maintenance to the wife are nullified?
(ii) Whether the Muslim Women (Protection of Rights on Divorce)
Act, 1986, takes away the rights which are conferred upon the Muslim
divorced wife under the personal law or under general law. (iii)
Whether the Muslim Women (Protection of Rights on Divorce) Act,
1986 provides that a divorced Woman is entitled to have maintenance
during the iddat Period only. The divorced wife (the respondent) has
filed criminal application under Sec. 125 of Cr. P.C. claiming
maintenance allowance, the magistrate granted Rs. 250 per month.
Additional Session Judge confirmed the order. Against that order, the
petitioner husband filed the criminal application in the High Court. The
petitioner husband contended that So far as the first issue was
concerned they alleged that in view of the provision of Muslim Women
(Protection of Rights on Divorce) Act 1986, the orders passed by the
magistrate under Section 125 of Criminal Procedure Code is non-est.
They relied on Section 7 of the Muslim Women (Protection of Rights
on Divorce)Act 1986 to support their argument. In regard to the second
issue they contended according to the Muslim Personal Law, the
husbands liability to provide of his divorced wife is limited to iddat
period, despite the fact that she is unable to maintain herself. The
reason behind that is that the enactment of Muslim Women (Protection
of Rights on Divorce) Act 1986 is to nullify the interpretation given by

341
the Supreme Court in Shah Bano's Case . He contended that a divorced
woman is entitled to get maintenance from her former husband within
the iddat period only and that word within should be read as "during"
or "for". It was further admitted that if the parliament wanted to
provide for future maintenance to the divorced women, then the
parliament would not have provided that the said amount should be
paid within the iddat period but instead of that the parliament has
specified the time. Contentions of the respondent wife were thatwith
regard to the first issue they submitted that Section 7 of Muslim
Woman (Protection of Rights on Divorce)Act 1986 clearly indicates
that there is no inconsistency between the Muslim Women (Protection
of Rights on Divorce) Act 1986 and the provisions of Cr. P.C. 125 to
128. The provisions of Muslim Women (Protection of Rights on
Divorce) Act 1986 grant more relief to the divorced women depending
upon the financial position of her former husband. So far as the second
point is concerned the and alleged that there is a presumption against
an implied repeal because there is a presumption that the legislature
enacts the laws with complete knowledge of existing laws obtaining on
the same subject and to failure to add a repealing clause indicates that
the intention of the legislature was not to repeal the existing laws. As
to the third question they submitted that parliament has provided for
making fair and reasonable provision and the payment of fair and
reasonable provision and the payment of fair and reasonable
maintenance to the divorced women after visualizing and
contemplating her future need and the same has to be made within the
iddat period by her former husband. The Hon'ble Gujrat High Court
speaking through M.B. Shah J. reasoned and held as under:

342
(i) As regards the nullify of an order passed under Section 125 of Cr.
P.C. after the enactment of Muslim Women (Protection of Rights
on Divorce)Act, 1986, the Court reasoned that there is no Section
in the Act which nullifies the order passed by the magistrate under
Section 125 of Cr. P.C. Further once the order under Section 125
of Cr P.C. has been passed granting maintenance to the divorced
wife then her rights are crystallized. There is no inconsistency
between the provisions of the Act and provisions of Section 125-
128 of Cr. P.C. On the contrary Act grants more relief to divorced
Muslim Women depending upon the financial position of her
husband.

(ii) As to the second issue the court relied on the statement of object
and reasons as well as preamble of the Act. The Court held that on
the plain reading of the Act, it cannot be said that Muslim Women
(Protection of Rights on Divorce)Act 1986 in any way adversely
affects the personal right of a Muslim divorced woman. Nowhere,
it is provided that the rights which are conferred upon a Muslim
divorced wife under personal law are abrogated or repealed. It
does not provide that it was enacted for taking away same rights
which Muslim woman seeking either under the personal law or
general law under Section 125 of Criminal Procedure Code.

(iii) For the third issue, the court held that the Act nowhere specified
the period for which she was entitled to get maintenance, nor did
the Act provide that it was for iddat only.

The dictionary meaning of the word 'within' is 'on or before' and 'not
later than', 'not beyond' therefore the word 'within' meant that he was

343
bound to make and pay the provision and maintenance before the
expiration of iddat period. It seems that the Judgment is not upto the
mark as it could not decide successfully the matter whether
maintenance of Muslim Women is only for iddat period or beyond
Iddat Period.

But the Kerala High Court has expressed a different view in Abdul
Gafoor Kunju v. Patumma Beevi, 102 The question before the Kerala
High Court was whether the Muslim Women was entitled to invoke
the Section 127 after the Muslim Women (Protection of Rights on
Divorce) Act. 1986 came into force. The Session Judge was of the
opinion that she could invoke the Section 127 of Muslim Women
(Protection of Rights on Divorce) Act, 1986 as the Act contained no
repeal, express or implied of the Code. Hon'ble High Court held that
the Section 125 to 128 of the Cr. P.C. are not repealed but excluded or
restricted. The well known rule of interpretation is that a special law
excludes a general law when a special law namely the Muslim women
(Protection of Rights on Divorce) Act, 1986 was passed to govern
maintenance to Muslim wives, application to general law i.e. under
code was excluded or restricted. On giving the answer to the argument
that the right under the code is independent of personal law and
unaffected., it was the opinion of Kerala High Court that if one
considers the context in which the Act came into existence or its
object, it is not possible to think that it was intended to provide
additional right. It seems that the Judgment tried to give some clear cut
picture regarding the (i)Application of Muslim Woman (Protection of
Rights on Divorce)Act, 1986, (ii) Exclusion or restriction of the

102
(1989) 1 KLJ 337

344
application of Section 125 to 128 of Cr. P.C. by a well known rule of
interpretation that special law exclude the general law; (iii) it tried to
reduce the effect of judgment in A. A. Abdullah's case which says that
the Act gives the additional arrangement for the maintenance of
women when maintenance by previous husband fell short of her needs.
This judgment clarified that the provisions of the Act is not to provide
additional right. The view of Gujrat High Court in A.A. Abdullah Case
was also not approved by the High Courts of Andhra Pradesh,
Guwahati and Calcutta.

In Usma Khan Bahmani v.Fathimunnissa Begum,103 the issues of the

case were: (i)Whether a divorced Muslim woman can claim
maintenance under Section 125 of Criminal Procedure Code,1973 from
her former husband even after the passing of the Act of 1986? (ii)
Whether the maintenance contemplated under Section 3(1) (a) of the
Act of 1986 is restricted only for the period of lddat? Or (iii) whether a
fair and reasonable provision has to be made for future also with in the
period of Iddat. Here the ratio of Majority judgment was 2:1. The
Court held on issue No.l that Section 3 of the Act of 1986 starts with a
non obstante clause as it provides that "not with standing anything
contained in any other law for the time being in force……."

Under Section 4 of the Act, the liability to pay maintenance to a

divorced woman, if she is unable to maintain herself after the period of
Iddat, is devolved upon the relatives and if the relatives are not
available on the Waqf Board.

The very concept of the liability of the husband is limited for and

103
1990 Cr. L.J. 1364 APHC

345
during the period of Iddat, under Section 5, it is provided that the
husband and wife would be governed Section 125 to 128 of the Cr. P.C
if they exercise their option in the manner stated therein. If the option
is not exercised, then it is clear that they will not be governed by the
provision of Sections 125 to 125 of the Cr.P.C.

Further, under Section 7 of the Act, the intention of the legislature is

clear when it provided that every application by a divorced woman
under Section 125 or 127 of the Cr.P.C., pending before the court or
magistrate in the commencement of the Act of 1986, shall note with
standing contained in that code and subject to the provision of in
accordance with the provisions Section 5 of this Act be disposed of in
accordance with the provision of the Act of 1986.

A combined and harmonious reading of the provisions of Section 3 to

7 of the Act of 1986 clearly demonstrate that the general object of the
legislation is to bring the law of maintenance payable to the wife in
consonance with the principles of Muslim law. On the Issue No.2, the
court held that the liability of the Muslim husband to pay reasonable
and fair provision and maintenance is confined only for and during the
period oilddat. The concept of reasonable and fair provision and
maintenance cannot be read as meaning two different things.The word
"Mafa" used in Ayat 241 in chapter II" of the Holy Quran indicates that
the word "Provision" and "maintenance" convey the same meaning.
Even in Shah Bano case, it is recognized that the word "provision" and
"maintenance" convey the same meaning. In such circumstances to say
that a fair and reasonable provision shall be made by her husband
forecasting her future needs, would amount to the negation of the very
object of the Act for which Act of 1986 has been promulgated. It

346
would give rise to a new concept of liability on the part of the husband
which would be difficult to be translated in concrete term as it would
be almost impossible to visualize the future needs of the divorced
Muslim woman which would be depending upon the several factor like
remarriage, change in the circumstances, or in the life style etc.

Therefore, in regard to the second question the judge held that the
liability of Muslim husband to pay the fair and reasonable provision
and maintenance contemplated under Section 3(1 )(a), of the Act is
confined only upto the period of Iddat On the Issue No.3 the Court
held that under Section 7 of the Act of 1986, it is specifically stated
that every application by a divorced women under Section 125 or 127
of the code pending before a Magistrate on the commencement of the
Act, shall be disposed of by the Magistrate in accordance with the
provision of the Act of 1986, having due regard to Section 5 of the Act
and the rules framed there under with regard to the option to be
exercised by the parties. Any order of maintenance which is not
warranted by the provision of the Act can not be executed against the
husband. Therefore the Judge held that the Section 125 to 128 of Cr.
P.C is not applicable after coming into force Act 1986, save in so far as
the parties exercise their option under Section 5 of the Act, to be
governed by the provision of Section 125 to 128 of Cr.P.C. it seems
that judgment is good keeping in view of the actual position under the
Muslim personal Law and historical background of the Act of 1986. It
has very rightly decided the issues involved in the present case and has
clarified the legal position on those issues. It has rightly remarked
that divorced woman can not claim maintenance under Section
125 of Cr. P.C., after passing of the Act of 1986, except under some

347
special circumstances. It has held that if it has been recognized that the
liability of the husband to pay maintenance is limited to the period of
Iddat, then there is no justification to hold that the liability of making a
reasonable future provision extend beyond the period of Iddat under
Section 3(l)(a) of the Act. It has remarked correctly that the combined
and harmonious reading of the Section 3 to Section 7 the Act of 1986,
clearly demonstrate that the general object of the legislation is to bring
the law of maintenance payable to the wife in consonance with the
principles of Muslim law. In this case the majority dissented from the
decision of Gujrat high Court in A.A. Abdullah’s case, and decision of
the Kerela High Court in Ali v. Sufaira,104 wherein it was held that
under Section 3(1)(a) a divorced woman was not only entitled to
maintenance up to the period of Iddat but also to a reasonable and fair
provision for her future.

The Calcutta High court, also dissented from the decision of the Gujrat
High Court in Abdul Rashid v. Sultana Begum, 105 in the instant case,
the main issues were: (i) Whether the Muslim husband has to provide
maintenance to his divorced wife up to the period of Iddat or beyond
the Iddat period? (ii)Can the Section 4 be interpreted to mean that it
was open to divorced wife to claim maintenance under Section 4 of the
Act in addition to Section 3 of Act. The Hon'ble High Court held on
issue 1 that the liability of the husband to provide maintenance was
limited for the period of Iddat and therefore, she was unable to
maintain herself. She had to make an application under Section 4 of the
Act. In view of the Act the court held on issue 2, that the provision
could not be fairy interpreted to mean that it was open to divorced wife

104
(1999) 3 Crimes 147.
105
(1992) Cri. LJ 76

348
to claim maintenance under Section 4 of Act in addition to what she
might have received under Section 3 of Act. This judgment seems to be
good one keeping in view of the legislative background of Act of 1986
and actual position of Muslim personal law. This judgment was akin to
the principles laid down in Usman Khan Bahmani 's case. It opposes
the decision of A.A. Abdullah's Case decided by the Gujrat High Court.
It rejected the interpretation of the Gujrat High Court which laid down
that the provisions of the Act is to make an additional arrangements for
her when maintenance allowance and provision settled by the previous
husband fell short of her needs on account of some unforeseen
circumstances.

Yet the Calcutta High Court took a different liberal view in Shakeela
Parveen Ali,106 the main Issues were: (i) Whether the term 'with in'
used in 1 i (a) of Muslim Women (Protection of Rights on Divorce)
Act, 1986 be interpreted only as 'for or during' or a future provision
may be made within Iddat period or for beyond Iddat period, (ii) What
procedure is to be followed when the petition regarding maintenance
under Section 125 of Cr P.C. is pending before the passing of Act? The
Calcutta High Court extensively quoted the judgment of Gujrat High
Court and approved both the principles therein. The order passed by
the Magistrate under Section 125 of Cr. P.C. was not by nullified the
Muslim Women (Protection of Rights on Divorce) Act, 1986. The
word 'within' in Section 3 does not mean 'for or during', it means 'on or
before', and the parliament has nowhere provided that the reasonable
and fair provision and maintenance are limited only for the Iddat
period. Therefore the word 'within' meant the he was bound to make

106
2001 (1) CLJ 608

349
and to pay the provision and maintenance before expiration of Iddat.
Accordingly it was held that the expression during Iddat period should
be extended till a Mohammedan divorced female enters remarriage.
The magistrate's order was modified to the effect that the petitioner
was entitled to get maintenance allowance from the date of application
till she remarries. This judgment can't be said upto the mark as it did
not pay regard to the historical background of the enactment of Muslim
Women (Protection of Rights on Divorce) Act, 1986. The High Court
under the guise of so called judicial activism tried to extend the
meaning of word 'within' unnecessarily. The additional benefit of
maintenance to the divorced Muslim women till she remarries was an
open encroachment of Muslim Personal Law. The meaning of word
'within' under Section 3(l)(a) of the Act can't be extended 'upto the
remarriage of divorcee, while taking regard to the purpose, object &
preamble of the enactment of Muslim Women (Protection of Rights on
Divorce) Act, 1986.

Here it would be worth mentioning the case of Idris Ali v. Ramesha

Khatoon,107 the question before the court was whether the provision of
Muslim Women (Protection of Rights on Divorce) Act, 1986, shall
have the application when a divorced woman approaches the court of a
magistrate for the execution of final order already passed in her favour
under Section 125 of Cr.P.C. Petitioner contended that as soon as the
Muslim Women (Protection of Rights on Divorce) Act, 1986 came
into force. Sections 125, 127, 128 of Cr.P.C, so far as divorced Muslim
women are concerned became inapplicable on Muslim women by
virtue of Section 7 of Muslim Women (Protection of Rights on

107
AIR 1989 Gauhati 24

350
Divorce) Act, 1986. It was also pointed out that such aforesaid order
maintenance would become nugatory and non-est in the eye of Law as
the right of the parties have to be decided according to the provision of
Section 3 and Section 4 of this new Act by virtue of Section-7 of the
Muslim Women Protection of Rights on Divorce) Act, 1986.
Respondent contended that action 7 has settled all controversy at rest
.It was pointed out that Section 7 in terms mentioned that if an
application filed by a divorced woman under Section125 or 127 of Cr.
P.C., is pending before a magistrate on the commencement of the Act
of 1986 then only it has to be disposed of according to the provisions
of new Act of 1986. His submission was that condition precedent for
the application of new Act was the pendency of the proceedings, under
Section 125 and 127 of Cr P.C., on the date of the commencement a
new Act of 1986 and once the proceeding is disposed of under Section
125 or 127 of Cr.P.C., by the magistrate then there is no pendency.
After analyzing the fact end the law on the point the Hon'ble High
Court held that if a divorced Muslim woman approaches the court of a
magistrate for the execution of a final order already passed under
Section 125, 127 of Cr.P.C., earlier to the new act of 1986, then she
will have the right to get the order executed under Section!28 of
Cr.P.C.,. which Section has been excluded from Section 7 of Act of
1986, and Section 7 of new Act of 1986 would not take away the right.
It may be said, that this judgment shows the tendency of the judiciary
to the application of the provisions of Criminal Procedure Code
inspite of the coming into force of Muslim Women (Protection of
Rights on Divorce) Act, 1986, which has made the sufficient
provisions for providing the right to the maintenance of Muslim
divorcees.

351
The single bench of the Bombay High Court had considered it just and
equitable that the husband should pay the divorced wife the
maintenance allowance even after the Iddat period, but thought it is
necessary that this matter, in the interest of justice, should be re-
accessed to full bench for its decision, therefore this revision
application of Karim Abdul Rehman Seikh v. Shehnaiz Karim Seikh, 108
came up before the full bench comprising Shah J., Smt. Ranjana Desai
J., and Fatil J. The four prime questions before the court were:

1. Whether the Muslim husband's liability under Section 3(a) of

Muslim Women (Protection of Rights on Divorce) Act, 1986 to
make a fair and reasonable provision and to pay maintenance is
restricted only upto the Iddat period or whether it extends
beyond Iddat period.

2. Whether the Act has the effect of invalidating the orders

Judgments passed under Section 125 of the Code prior to the
coming into force of Act, that is, whether the Act divests parties
of vested rights or benefits by acting retrospectively,

3. After the commencement of Muslim Women (Protection of

Rights on Divorce) Act, 1986 whether the divorced Muslim wife
apply for maintenance by invoking the provision of Chapter IX
of Criminal Procedure Code, 1973.

4. Whether the family court has the jurisdiction to try applications

of Muslim divorced woman for maintenance after coming into
operation of Muslim woman Act 1986.

108
2000 (3) Mh. LJ 555.

352
The High Court held for issue No. 1, that a reasonable and fair
provision has got to be distinct from maintenance. The word provision
has a future content. In the context be of Section 3(1) (a) of this Act, it
would mean an amount as would be necessary for the divorced woman
to look after herself after the Iddat period. This may involve amount
for her residence, food, clothing, medicine and the like expenses. So,
like Section 125 of the code no maximum amount is fixed here, but the
quantum, has got to be substantial having regard to the future needs of
the woman. The court concluded that the husband has to pay her
within the Iddat period but he has to make the reasonable and fait
provision for her within the Iddat period, which should take care of her
for the rest of her life or till she incurs any disability under the Muslim
Women (Protection of Rights on Divorce) Act, 1986 while deciding
this amount regard will be had to the needs of the divorced woman, the
standards of the life enjoyed by her during her marriage and the means
of her former husband. If the husband is unable to arrange for such a
lump sum payment he can ask for the installment. Further, till the
husband makes the provision the magistrate may direct monthly
payment to her even beyond Iddat, till amount is fixed. On the second
Issue, the court held that "The Section of 125 Cr P.C., prior to the
commencement of Muslim Women (Protection of Rights on Divorce)
Act, 1986 are not nullified by reason of its coming into force. The Act
does not direst the divorced woman's right to get maintenance under
Section 125 of the vested in her by reason of the order of he competent
court passed prior to its coming into force".

For the issue No.3, the court ruled that "After the commencement of
the Act a divorced wife cannot apply for maintenance by invoking the

353
provisions of Chapter IXth of the code. According to Section 5 a
divorced wife and her husband can by an agreement subject themselves
to the jurisdiction of magistrate under Section 125 and 127 of the code
and agree to be governed by the said provisions (but not without such
agreement).

On the 4th issue, the Court held "by virtue of Section 3 and Section 4 of
the said Act the application under Section 5 and Section 7 of the Act
have to be filed before the Magistrate only. We therefore hold that
after coming into force of the Act of 1986 the Muslim women can
apply under Section 3 and Section 4 of Act only before the first class
Magistrate having jurisdiction under the code. The Family court can
not deal with such application".

These case prior to Denial Latifi case can be quoted in brief such as in
Raflq v. Farida Bi, 109 Madhya Pradesh High Court held that if a
divorced Muslim wife wanted maintenance beyond the Iddat period,
she had to make her relatives/Waqf Board as parties to suit under
Section 4 of Muslim Women (Protection of Rights on Divorce) Act,
1986, as the husband could not be made a party. Virtually this
judgment is in the consonance of the intention of the legislature in
enactment of Muslim woman Act, 1986. This judgment support the
traditional view of Muslim Personal Law that the view of Muslim
Personal law that the husband could not be made a party if the
divorced Muslim woman wanted maintenance beyond the Iddat
period.

In Julekha v. M. Fazal,110 again the M.P. High Court held that the

109
2000 (2) MPWM 77 MP
110
2000 (1) Vidhi Baswar 123 MP

354
Muslim law makes the husband liable for the maintenance of his
divorced wife during Iddat only. It seems that this judgment of Court
also supported the traditional view of Muslim Personal Law that the
liability of the Muslim husband to maintain his divorced wife is only
for the duration of Iddat. Thus the legal status if the right of the
divorced wife continued to be fluid variable according to the views of
different High Courts. The main contentious issues were:

I. Whether the fair and reasonable provision was in additions to the

maintenance allowance or included in it, i.e. quantum of
maintenance.

II. The duration of time for which the husband liability extends
whether within Iddat or beyond Iddat period.

No doubt, the Muslim divorcee's fate was a progressive path:

• In the first stage the husband could get rid of himself

of all liability by simply divorcing her.

• The second stage was the 1973 amendment in the

Criminal Procedure Code which laid down that
husband was liable to maintain her even after Talaq;
this was her first stage of acquirement. But the
husband found an escape value which was the
payment of Mahr.

• In the third stage, the Judiciary insisted on making

this Mahr reasonable.

• The forth stage came when the court insisted on her

maintenance, whether Mahr. Is given or not.

• The fifth stage was marked by Act of 1986.

355
The uncertainties, which were led by the different decisions of the
various High Courts had to be settled. The verdict of Supreme Court in
Danial Latifi v. Union of India,111 deciding some of the unsolved
questions. Issue before the Hon'ble Supreme Court was whether
Muslim Women (Protection of Rights on Divorce) Act, 1986 is an
unconstitutional on the ground that it infringed Articles 14, 15 and 21
of the Constitution? Contentions of Petitioner were the following:

(i) Section 125 Cr. P.C. is a provision made in respect of woman

belonging to all religions and the exclusion of Muslim woman
from its benefit would be discrimination between woman and
woman.

(ii) A part from the gender justice caused in the country this
discrimination further leads to a monstrous proposition of
nullifying a law declared by this court in Shah Bano's case.
Thus there is the violation of equality before law but also the
equal protection of law and inherent infringement of article 21
of the Constitution as well as basic human values.

(iii) If the object of Section of 125 Criminal Procedure Code, 1973 is

to avoid vagrancy, the remedy there under can not be denied to
Muslim woman.

(iv) The Act is un-Islamic, un-Constitutional and it has the potential

of suffocating the Muslim woman and under mines the secular,
character which is the basic feature of the Constitution.

(v) There is no reason to deprive the Muslim women from the

111
(2001) 7 SCC 740; 11 (2001) DMC 714

356
 applicability of the provision of Section 125 Cr.P.C., and
consequently, the present Act must be held to be discriminatory
and violative of Article 14 of Constitution.

(vi) The conferment of the power on magistrate under Section 3 (2)

and Section 4 of the Act is different from the right of a Muslim
woman like any other woman in the country, to avail of the
remedies under Section 125 of Cr.P.C. and such deprivation
would make the act unconstitutional as there is no nexus to
deprive a Muslim woman from availing remedies under Section
125 of Cr.P.C., not with standing the fact that the conditions
precedent for availing of the said remedies are satisfied.

The Contention of respondent in the support of the impugned act,

were the following:

(i) Where a question of maintenance which forms parts of the

personal law of a community, what is fair and reasonable is a
question of fact in that context. Under Section 3 of the Act , it is
provided that a reasonable and fair provision to be made and
paid by her former husband within the period of Iddat and when
the fact has clearly been stated in the provision , the question of
interpretation as to whether it is for life or for the period of lddat
would not arise.

(ii) The personal law of any community is a legitimate basis for

discrimination, if at all and therefore does not offend Article 14
& 21 of the Constitution.

(iii) The parliament enacted the impugned Article respecting the

357
 personal law of the Muslims and that itself is a legitimate basis
for making a differentiation; that a separate law for community
on the basis of personal law applicable to such community can
not be held to be discriminatory.

(iv) The Act resolved all issues, bearing in mind the personal law of
the Muslim community and the fact that the benefit of Section -
125 of Cr.P.C have not been extended to a Muslim woman
would not necessarily lead to a conclusion that there is no
provision on the Act to protect the Muslim woman from
vagrancy and from being a destitute.

The Hon'ble Supreme Court by analyzing these points held that

Section 3 of Muslim Women (Protection of Rights on Divorce) Act,
1986, lays down two separate and distinct obligations on the part of the
husband, viz,

(i) To make reasonable and fair provision for his divorced wife,
(ii) To provide maintenance for her

The emphasis is not on the nature of duration of any such provision or

maintenance, but on the time by which an arrangement for the
payment of provisions and maintenance should be concluded namely,
'within the Iddat period'.

The Court upheld the validity of Muslim Women (Protection of Rights

on Divorce) Act, 1986 and observed in para 31 as under:

"Para 31 - Even under the Act, the parties agreed that the provisions
of Section 125 of Cr.P.C. would still be attracted and even otherwise,
the Magistrate has been conferred the power to make appropriate

358
provision. Therefore, what could be earlier granted by Magistrate
under Section 125 of Cr.P.C. would now be granted by the magistrate
under the very Act itself.

The Court finally concluded in para 36, while upholding the validity of
the Act. We may sum up our conclusions:

(i) A Muslim husband is liable to make a reasonable and fair

provision for the future of divorced wife which includes her
maintenance as well. Such provisions extending beyond the
Iddat period must be made by the terms of Section 3(1) (a) of
the Act.

(ii) Liability of the husband of maintains his wife under Section

3(1) (a) of the Act is not confined to Iddat period.

(iii) A divorced Muslim woman, who has not remarried and who
is not able to maintain herself after the Iddat period can
proceed under Section 4 of the Act against her relatives who
are liable to maintain her in proportion to the properties
which they inherit on her death, from such divorced woman
including her children and her parents. In case of any of the
relative being unable to pay maintenance, Magistrate may
direct the State Waqf Board, established under the Act to pay
maintenance.

(iv) The provisions of the Act do not offend Articles 14, 15 and
21 of the Constitution.

This judgment can be said the commendable and praiseworthy step of

the Supreme Court to upheld the Constitutional validity of the Muslim

359
Women (Protection of Rights on Divorce) Act, 1986 and paid due
regard to the feelings of the minority community, i.e., the Muslim
Community. As the right of the preservation of personal law is the
fundamental right of any community, on that ground the Muslim
Women (Protection of Rights on Divorce) Act, 1986 can not be called
to run counter to the constitutional mandate. But besides it, it can also
be said that in the guise of Judicial activism the court has given the
liberal meaning to term within under Section - 3(1) (a) of Muslim
Women (Protection of Rights on Divorce) Act, 1986 by making the
husband liable to make fair and reasonable provision within the Iddat
period, for beyond the Iddat period. It must be noted that the making
of the future provision beyond the Iddat period for the maintenance of
the divorced Muslim wife is foreign to Muslim Personal Law. Indian
Muslims have their deep feelings and emotional attachment to their
personal law, so it can also be said here that the sorry position is that
even the Apex court was no more hesitant to venture in the areas well
understood and free from legislative activity. It is to be noteworthy that
as the court refers the question of Section 4 of Muslim Women
(Protection of Rights on Divorce) Act, 1986 for upholding the
constitutional validity of the same, is appreciable. This step of the
court tried to avoid the jurisdiction of the enactment of Muslim
Women (Protection of Rights on Divorce) Act, 1986.

After the judgment of Denial Latif’s case a very interesting question

came before the Bombay High Court in Sayeed Khan Faujdar Khan v.
Zaheba Begum,112 the question was that, can a divorced Muslim wife
who withdraw an earlier application under Section 125 of Cr.P.C., on

112
AIR 2006 Bom. 39.

360
the basis of settlement, subsequently claim maintenances under Section
3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. The
court held that earlier settlement made by the parities was binding on
the parties. The wife's application under Section 3 of Muslim Women
(Protection of Rights on Divorce) Act, 1986 is nothing but an abuse of
the process of the court. A consent order or settlement arrived between
the parties in proceeding under Section 125 of Cr.P.C., operates as
estoppels and no party can be allowed to Muslim or abuse the process
of court by filing subsequent application under a different act for the
same relief, on the same set of facts or circumstances.

Recently in 2007 a very interesting question came before Bombay

High Court that whether a divorced Muslim wife alone can apply
for the maintenance from her husband under Section-125 of chapter
IXth of Criminal Procedure Code, 1973 in Seikh Mohammad V. Naseem
Begum,113 the Hon'ble High Court held that Muslim divorced wife
alone cannot apply for the maintenance under chapter IXth of Cr.P.C.,
she can only apply under this chapter IX, Section 125 of Cr.P.C,, when
there is an agreement between her and her husband under Section 5 of
the Muslim Women (Protection of Rights on Divorce) Act, 1986. The
court held that Section 5 of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 has been designed to mean that no proceeding
can be initiated on the application of Section 125 of Criminal
Procedure Code, 1973 by divorced Muslim wife unless there is an
agreement between her and her husband to be governed under Section
125 of Criminal Procedure Code, 1973. Application of the Section 125
of Criminal Procedure Code, 1973 is maintainable subject to the

113
(2007) DMC 226 Bombay High Court.

361
mandate of Section 5 of Muslim Women (Protection of Rights on
Divorce) Act, 1986.

Virtually the judgment of the court is good as it held that the purpose
of the enactment of Section 5 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 must be fulfilled. The contrary view of
the court would have under that Section otiose. Here the High Court
relied on the Judgment of Supreme Court in Denial Latifi v. Union of
India,114 in which court upheld the validity of Muslim woman Act,
1986.

In Riaj Fitima and Another (Petitioner) v. Mohd. Sharif 115

[Respondent], the issues before the Hon'ble High Court of Delhi were:

(i) Whether the statement of divorce taken by the husband in the

written statement sufficient to constitute divorce?

(ii) Whether in the absence of direct and insufficient evidence to

prove divorce, the bar of the Act of 1986, be made applicable in
entertaining application of maintenance under Section 125 of Cr.
P.C.?

The petitioner alleged that she was still the wife of the respondent and
she was turned out of the matrimonial home for the want of dowry.

Respondent husband contended that he had obtained divorce from his

wife by the Mufti. He also alleged that in view of the divorce the
petition was debarred from claiming maintenance under Section 125
Cr. P.C. Instead of the remedy of the petitioner was to take recourse to

114
II (2001) DMC 174
115
(2007) DMC 26 Delhi High Court

362
the provisions of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 as under:

So far as the first issue was concerned it was laid down that mere
statement of the husband taken in a written statement that he had
divorced his wife on a particular date would not suffice. If this
accepted it would be prone to misuse. The court laid down the
following perquisites for proving that divorce had taken place:-

 Divorce must be for the reasonable cause.

 There must be a proclamation of Talaq thrice in the presence of

witnesses.

 There must the proof of the payment of Mahr.

 The husband must prove that there was attempt for conciliation
prior to divorce,

As far as the second contention is concerned the court relied upon on

Salim Basha v. Mumtaz Begum, 116 where Madras High Court opines
that Talaq was not valid if there was no valid evidence of pre-divorce
conference for the settlement by two mediators from both sides. The
Court held that respondent could not proved that he had divorced his
wife and, thus the bar of the Act of 1986 was not applicable in
entertaining the application of the petition under Section 125 of Cr.
P.C.

This judgment is based on the Judgment of the Supreme Court in

Shamim Ara v. State of U.P.,117 wherein the court held that' Talaq to be

116
1991 (Criminal)
117
J.T. 2002 (7) SC 570

363
effective has to be explicitly proclaimed'. Thus in the present social
welfare context the judgment is praiseworthy as it lays down that for a
valid Talaq the prerequisites of the valid Talaq must be fulfilled. It
will be helpful in the future to reduce the abuse of the authority of the
Muslim man of giving his wife divorce arbitrary and in rash manner.
Here it was clearly settled that mere the written statement of the
husband that he had divorced his wife on a particular day will not be
sufficient to prove divorce.

In Tripura Board of Waqf (petitioner) v. Ayesha Bibi118 [Respondent],

the issue before the Gauhati High Court was that whether the Waqf
board can be directed to pay maintenance amount without offering a
opportunity of hearing before passing the order? The petitioner
contended that there is no provision in the Act of 1986 to pay a
maintenance allowance to a divorced Muslim woman by the Waqf
Board, unless there is a specific order of competent court of law. He
has submitted that before passing the initial order, the Waqf board
ought to have been heard by the learned CJM.

Countering the contentions of the petitioner, the learned council for

respondent submitted that the whole exercise on the part of the Waqf
Board is to frustrate the claim of the respondent wife for the
maintenance. As regard the notice to the Board, he has submitted that
such notice is not contemplated in Section 4(2) of the Act nor in any
provision of the Act, In this contention he has placed his reliance on
the two decision of the Apex cast in Syed Fatima Machrs and Denial
Latifl's case. The learned Judge held that the plea of the petitioner
board that before passing the order, they ought to have been heard, it

118
AIR 2008 Gauhati 10

364
will be suffice to say that no such provision is discernible in the Act.
Section 4(2) of the Act provides that where a divorced woman is
unable to maintain herself and she has no relative in Subsection 4(1) or
such relatives have not enough means to pay the maintenance ordered
by the magistrate or other relatives have not the means to pay the
shares of those relatives whose shares have been ordered by the
magistrate to be paid by such other relatives under the second proviso
to Subsection (l),the magistrate may by order direct the State Waqf
Board to pay such maintenance as determined by him.

Is seems that in the present case the petitioner board instead of acting
towards implementation of the object and reasons for which the
aforesaid Act of 1986 was made, resisted the same making all efforts.
Therefore, the court should resort to prompt implementation of the
order.

Judicial Activism and its limits

The concept of judicial activism which is another name of innovative

interpretation was not of the recent past. The twin concept of judicial
review and judicial activism were said to be born simultaneously. The
judicial creativity may yield good results if it is the result of
principled activism but if it is propelled by partisanship, it may result
in catastrophic consequences generating conflicts which may lead to
the agitation to a particular community or group.

The common criticism we hear about the judicial activism is that in the
name of interpreting the provisions of the Constitution and legislative
enactments, the judiciary often rewrites them without explicitly stating
so and in this process, some of the personal opinions of the judges

365
metamorphose into legal principles and constitutional values. On the
other facet of this line of criticism is that in the name of judicial
activism, the theory of sepration of powers, is overthrown and the
judiciary is undermining the authority of the legislature and the
executive by encroaching upon the spheres reserved for them Judicial
activism can be compared with legislative activism. The latter is of
two types: (i) activist law making ; (ii).dynamic law making . Activist
law making implies the legislature taking the existing ideas from the
consensus prevailing in the society. Dynamic law making surfaces
when legislature creates an idea outside the consensus and before it is
formulated, propagates it. Dynamic law making always ordinarily
carries with it legitimacy because it is the creation of the legislatures
who have the popular mandate. Judges cannot play such a dynamic
role; no idea alien to the constitutional objectives can be
metamorphosed by judicial interpretation into a binding constitutional
principle.

Thus from the above discussion on the case laws regarding the
maintenance of the divorced Muslim wife, I feel that judiciary has
taken the double standard in the interpretations of the provisions of
Muslim Women (Protection of Rights on Divorce) Act, 1986.

On one side the decisions of various High Courts and Apex Court
upheld the constitutional validity of Muslim Women (Protection of
Rights on Divorce) Act, 1 986, but on the other side I, may fee] sorry
to say that by unnecessarily interpreting the provisions of Muslim
Women (Protection of Rights on Divorce) Act, 1986, the judiciary has
tried to venture in the areas well understood and free from legislative
activity.

366
During the process of the analysis of the background history and spirit
of the Muslim Women (Protection of Rights on Divorce) Act, 1986, 1
felt that Indian Muslims have deep emotional feelings regarding their
personal law. Their personal law is constitutionally recognized and
judicially enforced. So that the judiciary while interpreting the
provisions of Muslim Women (Protection of Rights on Divorce) Act,
1986, should pay due regard to the sentiment and emotion of the
Muslim community, as "religion, ethics and law are therefore, so
intermixed in Islam ...... " 119

(c) Identification of Pitfalls

The above analysis of the case shows that the role of judiciary is under
the sphere of doubt regarding the implementation of Islamic personal
law with respect to maintenance, divorce intestate succession despite
the fact that these matters have been specifically included in Section 2
of Sharlai Application Act, 1937.

Specially in the matter of maintenance and divorce the steps of

judiciary has been very harsh and has been touching the line of
judicial distortion rather than judicial Activism.

The tendency of the Judiciary to the implementation of the Section 125

of Cr. P.C. regarding the maintenance of the divorce wife is frustrating
the people of Islamic community. This step is being taken inspite of the
fact that the Muslim divorced spouse can be governed by Section 125
of Cr, P.C. only when there is an agreement between them under
Section 5 of Muslim Women (Protection of Rights on Divorce)Act,
1986.or the application of the secular provisions to the divorced

119
Faizee A.A.A., Modern Approach to Islam 32 (1981 ed.) p. 36.

367
Muslim Spouse the judiciary has taken the innovative steps of not
accepting the validity of talaq which has been give under the rules of
Islamic Shariah.As soon as there is not the sufficient proof of talaq.
The spouse comes outside the preview of Muslim Women (Protection
of Rights on Divorce) Act, 1986, and the maintenance provision under
secular law under Section 125 of Cr. P.C. is applied.

These cases have been recently shown in.

 Iqbal Bano v. State of U.P.120
 Shameen Beig v. Najmunnisa Begum 121
The burning question is that the judiciary's steps to decided the validity
of talaq is correct of which the sole authority of taking decision is with
the Muslim community. It comes under the sphere of personal law
which has been constitutionally recognized. The right of the
application of the personal law in these matters has been specifically
provided under the Section 2 of Shariat Application Act, 1937 by the
Indian Legislature. The main pitfalls in the interpretation of Muslim
Women (Protection of Rights on Divorce) Act, 1986 is, that is felt by
me as a Student of personal law, the interpretation of Section 3 of this
Act in such manner so as to stretch the maintenance provision beyond
the Iddat period in the guise of future maintenance. Moreover it gas
been done by the Apex Judiciary through the Denial Latifi’s case. Now
the various decisions of High Courts is recognizing the existence and
validity of provisions of Muslim Women (Protection of Rights on
Divorce) Act, 1986.

But they are very much hesitant to cross the limits set by the apex

120
DMC 2007
121
DMC 2007 Bom. H.C. 738.

368
judiciary. The recent case122 of Bombay High Court is the clear
example of the hesitant tendency of the High Court to cross the limits
set by Apex judiciary.

The pitfalls may be summed up briefly in the following manners:

 The wrong implementation of the Cr.P.C. 127(3)(b) by not

taking into consideration the legislative history and intention of
legislature of inserting it. The judiciary forgot that this Section
was inserted to save the Muslim Personal Law.

 The solution made by the judiciary regarding the controversy of

maintenance of divorced Muslim wife within Iddat period went
against the Islamic Personal Law,

 The loopholes in the drafting of Muslim Women (Protection of

Rights on Divorce) Act, 1986, which provides the chance to
judiciary to interpret the provisions of the Act against the
Islamic Personal Law.

The indifferent behaviours of judiciary toward the Islamic Personal

Law, despite knowing the fact that this community has deep feeling
and emotion regarding their religi6n.

(d) Advocacy for reforms and improvements

There are some loopholes which are being felt by the scholars of the
Islamic Matrimony regarding the drafting of Muslim women
(Protection of Rights on Divorce) Act, 1986.

As it is very contentions issue so I want to put forth some humble

122
Sheikh Mohd v. Naseem Gegum I (2007) DMC 226 Bombay High Court

369
point regarding the reforms in the drafting of Muslim Women
(Protection of Rights on Divorce) Act, 1986:

 The expression "who has been divorce by or has obtained

divorce from her husband" used in the act includes.

(a) Unilateral Talaq by Husband

(b) Khula demanded by and effected at the wife's instances

whether in or outside the court

(c) Divorce by mutual consent (mubarat)

(d) Dissolution of Marriage under the provisions of the

Dissolution of Muslim marriage 1939

(e) Annulment of void or irregular marriage.

These kinds do not have similar consequences for maintenance in

different school. But Act deals with all forms of divorce without
attaching importance of differences.

 The definition of term Iddat in Section 2(b) does not expressly

state as to upon whom observing of Iddat is mandatory and on
whose part it is not obligatory.

For example a woman divorced before consummation of marriage, is

not required to observe Iddat, hence the clumsy definition in Section
2(a) by not excluding such woman is objectionable under Islamic
rules.

 Despite the clear cut humane rule of Muslim law that Muslim
law cares the maintenance of divorce who is breast feeding and
child maintenance is the absolute duty of father, the Section 3(i)

370
 (b) is the victim of confused drafting and bound to be
interpreted by court in various ways.

 Section 3(i) (c) of the Act states that a divorced woman is

entitled to "an amount equal to sum of Mahr or Dower is
payable because in Islamic law there are many situations in
which payment varies. The ambiguous language of said Section
makes Mahr payable in every case of divorce.

Thus by analyzing the aforesaid loopholes of the Act which is now

representing manifestly the Islamic Community to whole world, must
be removed and be tried to be reformed in the line of true Islamic
principles.

As the Constitution of India regards the personal laws of every

community the judiciary must not assume the role of legislature and
Mujtahid and does not try to venture into areas of personal laws which
are well understood and free from legislative activity.

It is also to be noted that the trend which has been set by the Judiciary
to maintain Muslim divorce beyond the Iddat period must be reviewed
according to line of Islamic Sharia. As this concept is foreign to the
spirit of Islamic law. The reason is that there is no any interfamiliar
transfer of girl on marriage unlike Hindu family.

4.4 MAINTENANCE OF WIFE UNDER CHRISTIAN LAW

(a) Analysis of legislative provisions

Maintenance of wife under Christian Law is dealt with the Section-36,

Section-37 and Section-38 of the Indian Divorce Act, 1869. Section 36
of Indian divorce Act, 1869, deals with the petition for the expenses of
371
the proceedings and alimony pending the suit. According to this
Section, 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 the expenses of the proceedings and
alimony pending the suit. 123 Such a petition shall be served on the
husband and the court on being satisfied by the truth of the statement
contained therein, may make such order on the husband for the
expenses of proceedings and alimony pending the suit as it may seem
just.124 There is a proviso in this Section which says that the petition
for the expenses of the proceeding and alimony pending the suit shall
as far as possible, be disposed of with in the sixty days from the date of
the service of notice on the respondent. 125

The object of this Section is to provide the wife with a source of

maintenance, whilst a matrimonial suit is pending. She is entitled to
present a petition of alimony pendente lite. Alimony pendente lite is an
ad interim arrangement and its payment is enforced on the ground of
necessity and only when the wife has no other means of subsistence.
Where pending her application for alimony the wife gets advances
from a third party to meet her necessaries the third party is in equity
entitled to recover the sums advanced by him from the husband. The
alimony may be claimed by the wife in suits for (i) Nullity (ii)
Dissolution (iii) Judicial Separation (iv) Restitution conjugal rights of
marriage.126

A husband should file an oath to a petition for alimony by the wife. He

123
Substituted for the word “for the alimony pending suit by Indian Divorce (Amendment) Act,
2001
124
By Amending Act of 2001
125
Inserted by the Amending Act of 2001.
126
Weingarten v. Engel 1947, All ER 425

372
must state his gross income. He must specify deductions of any that he
claims and it is not sufficient for him merely to state his net annual
income.127 A husband who does not file an answer to the petition can
not be allowed to cross examine witnesses produced by the wife in
support of her alimony petition nor can he give any rebutting evidence.
Husband may plead that his wife has income and property. It is to open
to the husband to plead that the wife is being supported by the co-
respondent and is not entitled to alimony pendente lite. He may also
plead that the wife has been living separate for many years before the
institution of suit and she has supported herself during the separation
and is still able to do so. The husband is not allowed to put any
question direct or indirect with regard to her adultery. The averment of
adulatory in answer to a petition for alimony is irrelevant and the court
is bound to presume that the wife is innocent till she is proved guilty.
An alimony petition should be made at the earliest opportunity, as
delay may go to show that the wife has a means of subsistence and is
not in any need of alimony.

The Indian law is quite clear that in case of a suit for divorce or for
nullity of marriage, the order for alimony remains operative only till
the decree is made absolute or is confirmed. In case of a suit for the
restitution of conjugal rights the order for alimony pendente lite
extends upto the time allowed to the husband for complying with the
decree or till such times she refuse to comply with it. The quantum of
alimony that should be awarded to a wife will depend on the facts and
circumstances of each case. The parties may mutually agree to the
amount. The Indian law with regard to the quantum of alimony

127
Nankis v. Nankis 33 L.J. p. 24

373
pendente lite that the alimony pendente lite should in no case exceed
l/5th of the husband's average net income for the past three years. The
general rule regarding the commencement of payment of alimony is
that it commences from the date of the service of the petition on the
husband and not the date of the return of the citation. The Indian law is
quite clear that alimony shall continue till such time as the decree is not
made absolute or is confirmed by High Court. The Act contemplates
the payment of alimony to the wife so long as she continues in law to
be a wife.128

The Indian Divorce Act, 1869 is silent as to the mode of the

enforcement of decrees and an order for the payment of alimony
pendente lite must be made according to the provisions of Civil
Procedure Code , 1908 for the execution of decrees.

An order for alimony pendente lite does not create a legal debt, but a
liability to pay and is only a personal allowance and so long as the
order subsist the right to alimony can not be alienated or released.
When a marriage has been validity terminated under the law of the
parties domicile, any maintenance order made by the court other than
the court of parties domicile, must also comes to an end. 129

Section 37 of the Indian Divorce Act 1869, deals with the petition of
permanent alimony. This Section empowers the High Court and
District judge to order that the husband shall 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. This order
may be made by the High Court or District Judge, if it thinks fit, on

128
Manchanda, The law and Practice of Divorce (ed. 2nd , 1958, Allahabad), pp. 303-304
129
Id. pp. 305, 306.

374
any decree absolutely declaring a marriage to be dissolved, or any
decree of judicial separation obtained by wife. In every such case the
court may make an order on the husband for payment to the wife of
such monthly or weekly sum for her maintenance and support as the
court may think reasonable. There is also a proviso in this Section
which provides that if the husband afterwards from any cause becomes
unable to make such payment, it shall be lawful for the court to
discharge or modify the order or temporarily to suspend the same as to
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. This
Section empowers the court to order for the permanent alimony or
permanent maintenance after a final decree for judicial separation or
dissolution of marriage has been granted. The District Judge is also
given the same power after the decree passed by him has been
confirmed by the High Court.

The court may order the payment of such permanent alimony or

maintenance in three ways:

1) It may secure a gross sum of money

2) It may provide an annuity for wife life

3) It may order the husband for the payment of monthly or weekly

sum for her maintenance.

The proviso to the Section gives the court a power to vary, discharge,
modify or temporarily suspend the payment order, if the husband
subsequently becoming unable to make such payment.

375
There is no hard and fast rule as to the quantum of alimony that should
be given to an innocent wife. The law has laid down no exact
proportion. The allocation of alimony is a matter for the discretion of
the court to be exercised upon a consideration of all the circumstances
of the case.130 As a general rule permanent alimony may be more than
alimony pendente lite. There are some factors of which Section 37 of
the Indian Divorce Act, 1869 enjoins the court. The factors are:

(i) The conduct of the parties before and after marriage.

(ii) The nature and source of husband

(iii) Fortune of the wife, if any, and other circumstances of the

case.

The usual rate of permanent alimony is one third of joint net income.
The court in this matter is guided by the practice of the ecclesiastical
courts. However, the court has the discretion and may award less than
one third of the joint net income, if the circumstances so warrant. But
the court will not grant more than one third unless exceptional
circumstances exist.

The permanent alimony may be increased or decreased by the court

according or the changing circumstance and the fortune of the parties.

Permanent maintenance may be claimed by an application filed at any

time after the decree nisi. In any event no order for permanent
maintenance can take effect prior to the passing of the decree absolute.
An application after final decree may be made within the two months
of the final decree; but it may be filed even subsequently with the leave

130
Id. p. 310

376
of the court. The petition for the permanent maintenance must be
served on the opposite party

Section 38 of the Indian Divorce Act, 1869, deals with the rules
regarding the payment of alimony. According to this Section, 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. The Court may impose any terms or restrictions which to
the Court seems expedient .Thus this Section lays down the mode of
payment of alimony. The court is given power on making an order for
alimony, be it alimony pendente lite or permanent alimony. Alimony
may be paid wither direct to the wife herself or to her trustee. Such
trustee, must however be approved by the court. The court is given
power to impose any term or restrictions on the payment of alimony
and may appoint new trustee from time to time. The whole object of
this Section is to ensure that the wife receives the allotted alimony.

(b) Evaluation of Judicial Pronouncements

As it has been mentioned earlier that only landmark and trendsetter

judicial decisions in the Indian context are being shown and discussed
here. Since the Christians are not the majority in India population is
less and the number of litigation and reported cases are almost
negligible. There are not any recent cases regarding the maintenance of
wife which can be termed as landmark and trendsetter. This
community is also peace loving and satisfied like the Parsi community.
Thus, though having the many loopholes in the drafting of the
Christian laws regarding the matrimonial causes and maintenance,
there is not any huge controversy like other communities.

377
(c) Identification of Pitfalls

The need for reforms in the Indian Divorce Act enacted as early as
1869 has long been felt and advocated by the public, jurist, the law
commission and the judiciary, including Supreme Court.

It is note worthy that the ground for divorce under the Act were too
limited and harsh too before the insertion of Section 10 A as amended
in 2001.

Even as between husband and wife there is discrimination as under

Section 10, the husband has simply to prove adultery where as the
wife has to prove another matrimonial offence along with adultery, for
granting relief.

There was another lacuna which is not suitable as per the present
conditions of the society that a dissolution decree passed by the
District Court needs to be confirmed by the High Court. It makes the
procedure of divorce complicated and time killing. [Requirement of
confirmation by the High Court has now, been dropped the Divorce
Act, 2001].

Besides these shortcomings there are also some shortcomings in the

drafting of the Indian Divorce Act, 1869 which is shown by the fact
that the Act considers the wife as a property of the husband. Who
under Section 34 of the Act, is entitled to claim damages from the
wife's adulterer.131

The Act was also discriminatory on the basis of religion. While under
all other personal laws cruelty and desertion, inter alia are the grounds

131
Kusum, Marriage & Divorce Law Mannual (ed. 2000, Delhi) p. 28

378
for divorce but under this Act, there are only ground for judicial
separation. Thus a Christian married wife under the Act was expected
to endure all sort of cruelties without any right to seek divorce where
as "wife married under the Hindu or the Parsi Marriage Law, is entitled
to divorce, may be even in less unbearable situations.132

As early as Section 10, was challenged as illegal discrimination on the

ground of gender in Dwarja Bai v. Ninan,133 the court however
dismissed the plea and observed (obiter).

" ............... / consider that Section 10 as it stands is

not prima facie repugnant to Articles 13 and 15 of the
constitution. It appears to be based on a sensible
classification and after taking the abilities of the man
and woman and the result of their Acts, and not merely
based on sex, when alone it will be repugnant to the
constitution...

(d) Advocacy for Reforms and Improvements

The issue relating to the changes in the Indian Divorce act, 1869 has
been hanging for more than forty years. Various law commissions in
their reports stating with the 15th report as well as various High Courts,
such as the High Courts of Mumbai, Chennai, Andhra Pradesh,
Kolkata and Kerala has emphasized the need for bringing about gender
equality in the matter on grounds of divorce as available to the
Christian spouse. It was also painted out that there was no need for a
provision which required confirmation of decree for dissolution of
marriage by the High Courts. In the Indian Divorce (Amendment) Bill
2001, the Government had sought to bring about gender equality by
amending Section 10, Section 17and Section, 20 to do away with the

132
Jorden Deingdeh v. S.S. Chopra AIR 1985 SC 935.

379
confirmation by the High Court of decree of divorce or nullity of
marriage.

Other provisions of the Indian Divorce Act, 1869, were also sought to
be amended to make certain consequential changes. The Governments
approach in the matter was to bring about minimal changes in
consonance with ruling of the courts and uniformity of law among
Christians.

A provision has been made for the dissolution of marriage by mutual

consent. This is an the lines of Section 13(b) of the Hindu Marriage
Act, 1955 and Section 28 of the Special Marriage Act, 1954

Section 7 of the Indian Divorce Act, 1869 which provides that the High
Courts and the District court shall act and give relief on the principles
applied by the English Courts has been deleted since after attaining
independence, this provision seems to have become redundant. Section
34 of this Act which provided that the husband may claim damages for
adultery in a petition limited to that object, and the ground of his wife
having committed adultery has been deleted.

Section 35 of this Act provided that where in a petition by the husband,

the alleged adulterer was made a co-respondent and the adultery is
established, the court may order the respondent (adulterer) to pay the
cost of the proceedings. This provision has also which provides that the
alimony pendente lite shall not exceed one fifth of the husband's
average net income for the 3 years, the next proceeding date of the
order has also been deleted.

133
AIR 1953 Mad. 792 at 800.

380
Section 10 for which there were objections by the jurists that it wee
against the gender equality. lt has now been modified after the
Personal Laws Amendment,2001, both husband and wife can seek a
divorce on the grounds of-

(i) Adultery
(ii) Cruelty
(iii) Insanity for more than 2 years
(iv) Incurable leprosy for more than 2 years
(v) Conversion to another religion
(vi) Willful refusal to consummate marriage
(vii) Not being heard of for 7 years
(viii) Venereal disease in communicable stage from for 2 years
(ix) Failure to obey the order for the restitution of conjugal
rights.
However the wife has been permitted to sue for divorce of additional
grounds if the husband is guilty of:

(i) Rape
(ii) Sodomy
(iii) Bestiality
All there years, Christian Spouses were compelled to mudslinging each
other even if they desired to for in for divorce due to the non
establishment of grounds. Now Section 10-A is added under which
mutual consent has also been made a ground for divorce.

Thus it can be said that after the Indian Divorce (Amendment) Act,
2001, is a great step for the improvement of the lacunas in the drafting
of old Act.

It has adopted the good features of Hindu Marriage Act, 1955 and

381
Special Marriage Act, 1954. The present situation of the Christian law
thus can be said to be satisfactory.

4.5 MAINTENANCE OF WIFE UNDER PARSI LAW

(a) Analysis of the Legislative provisions

Maintenance of wife under Parsi Law is dealt with the Parsi Marriage
and Divorce Act, 1988. The relevant provisions of this Act regarding
the maintenance of wife are: Section 39, Section 40, Section 41 and
Section 42. Section 39 of the Parsi Marriage and Divorce Act, 1988,
deals with the alimony pendente lite. This Section empowers the court
to order the defendant to pay to the plaintiff, the expenses of the suit,
and weekly or monthly sum during the suit, if it appears to the Court
that either the wife or the husband has no independent income
sufficient for her or his support and the necessary expenses of the suit.
The Court, while ordering under this Section pay regard to the
plaintiffs owns income and the income of the defendant. There is a
proviso in this Section which provides that the application for the
payment of expenses of suit shall be disposed of within 60 days from
date of service of notice on the wife or the husband as the case may
be.134 Alimony pendente lite as a temporary provision for the wife or
the husband awarded by the court, ordering the husband or wife, as the
case may be to pay alimony pendente lite. In order to obtain alimony
pendente lite and expenses of proceeding, the wife or the husband has
to prove following conditions that:

1) She or he has no independent income.

2) Her or his income is not sufficient for her or his support and the

134
Subs by the Marriage laws Amendment Act, 2001 [Act No. 49 of 2001].

382
 necessary expenses of the suit.

Where neither party (husband or wife) has mean to meet the expenses
of other party, no order may be made. 135 In granting relief under
Section of Act, the court shall take into consideration:-

1) The defendants income and;

2) The plaintiff own income

Relief under Section 39 can be sought either by wife or the husband

who initiated the substantive proceedings. The question as to who is
the husband or wife has been interpreted by Deshpande J. of Bombay
high Court while interpreting the said term with reference to Sections
24 & 25 of the Hindu Marriage Act, 1955 which are pari materia to
instant provision. His lordship has taken the view that the expression
wife as used in Section 24 and Section 25 of the Hindu Marriage Act,
1955, doesn't presupposes an existing jural relationship of husband and
wife, but it merely descriptive of the person who may claim to any
other relief which can be granted under Hindu Marriage Act, 1955. 136
Alimony pendente lite under Section 39 can be sought during the
pendency of any suit arising under the Act. When proceedings are over
in their entirely, there is no question of the application of Section 39. 137
Under Section 39 of Parsi Marriage and Divorce Act, 1988, no fixation
of the quantum by the legislature is made for the purpose of alimony
pendent elite. It is left to the court to determine the same having regard
to the income of plaintiff and defendant. Ordinary, the Court grant
maintenance under Section-39 from the date of the application. The

135
Preeti v. Ravind Kumar AIR 1979 Al 29.
136
Hemraj Shamrao Umedkar v. Smt. Leela, AIR 1989 Bom. 146 (SC)
137
Nirmala v. Ramdas AIR 1973 P&H 48

383
court should grant alimony pendente lite since the date of demand. 138
The judiciary is of the view that the court may grant alimony pendente
lite from the date of the service of the notice or petition on the
defendant.139 Section 40 of the Parsi Marriage and Divorce Act, 1988,
deals with the permanent alimony and maintenance, Section 40(1) of
the Parsi Marriage and Divorce Act, 1988, empowers any court to
order the defendant to 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 a plaintiff as having regard to the
defendant's own income and other property , at the time of passing any
decree or at any time subsequent thereto on application made to it for
the purpose by either spouse. Any such payment may be secured if
necessary by a charge on the movable or immovable property of the
defendant, if it may seems to the court to be just. According to Section-
40(2) of the Parsi Marriage and Divorce Act, 1988, if the Court is
satisfied that there is a change in the circumstances of either party at
any time after it has made an order under Subsection (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. According to Section-40(3) of the
Parsi Marriage and Divorce Act, 1988, if the Court is satisfied that the
party in whose favour an order has been made under this Section has
remarried or if party is husband, had sexual intercourse with any
woman outside wedlock, it may at the instance of other party vary
modify or rescind any such order in such manner as the court may
deem just. This Section aims at providing for permanent alimony and
maintenance to the husband or wife, whoever is in need of the same.

138
Pratima v. Kamal (1964) 68 CWM 316.
139
Sudharshan Kumar v. Chhagar Singh (1978) Kash. L.J.

384
This relief would be available only when a decree for judicial
separation or restitution of conjugal rights or divorce or nullity of
marriage has been passed by any court exercising jurisdiction under
this Act. An order under Section 40 can be passed: (a) either at the time
of passing any decree, or (b) at any time subsequent thereto. No order
can be passed under Section 40 if the substantive petition is whether
dismissed by the court, 140 or withdrawn by the petitioner.141 While
passing under Section 40 (1) of the Act, it is obligatory upon the court
to have regard to the conduct of the parties of the case. The conduct of
the parties does not mean merely the conduct of the party who is
applicant for maintenance, but also of the other spouse in relation to
their life together as husband and wife.142 Permanent alimony can be
granted even to an erring spouse and the fact that the wife did not
comply with the restitution of conjugal right can not by itself disentitle
her to claim permanent alimony. 143

Doubtless, the conduct of the parties any be factor in deciding claim or

permanent alimony, but each case has to be decided on its own merits,
it is not correct to say that grant of judicial separation on the ground of
cruelty of the wife, is a bar to her getting permanent alimony. 144

Section 40 of the Parsi Marriage and Divorce Act, 1988, Act puts
stress on the conduct of the parties during the matrimonial life and the
court pays due regard to that factor. Section 40 (1) and (3) place
considerable emphasis on wife being chaste not during matrimonial tie
but also after the decree to retain her eligibility for the purpose of

140
Mazumdeet v. Mazumdar, AIR Cal 428.
141
Shanta Ram v. Hirabai, AIR 1962 Bom. 27.
142
Lalithamma v. R. Kanan AIR, 1966 Mys. 178.
143
Premji v. Rai Sarkar Kanji AIR 1968
144
Shabbir, Mohd., Parsi Law in India (ed. 5th , 1991, Allahabad), p. 111.

385
maintenance. Now in view of the Phrase -"the conduct of the parties
and other circumstance of the case," under Section 40 (1) of the Act,
the courts are duty bound to take into consideration the health of
applicant and source of income and if court satisfied that she is in poor
health and has no sources of income and there is no one to look after
her, maintenance should be granted though she had been guilty of
adultery and divorce was granted on that ground.145 The Madhya
Pradesh High Court opined that where the conduct of wife is unchaste;
the question of alimony or maintenance does not arise. 146 It is clear
from the above discussion that regarding the relevancy of the conduct
of the parties in deciding claim of permanent alimony, each case
should be decided on its own merits. In fixing the amount of
maintenance under Section 40 of the Act the court is required to
consider the following matter:

(a) Income and property of the party who is required to pay.

(b) Income and property of the non claimant
(c) Conduct of the parties
(d) Circumstances of the case.
Under Section 40 of the Parsi Marriage and Divorce Act, 1988, the
court can order one party to pay the other for the maintenance and
support:

(a) A gross sum

(b) A sum to be paid monthly
(c) A sum to be paid periodically.
The status of the husband and wife must be taken into account and not
the status of father or any other relations.

145
Jain, SC. The law relating to Marriage and Divorce, (ed. IInd, 1980, Delhi) p. 195.
146
Lila Devi v. Manohar Lal AIR 1959 MP 349.

386
According to the practice of English courts, which generally influences
our judicial activity, the monthly allowance that the defendant may be
ordered to is one third of his or her income. In some case Indian
Judiciary has followed this English Rule. The one third rules is merely
a guideline and there is no rigidity about it. 147

The court is competent to fix more than one third or less than one third
in a given case depending the circumstance of the case. The court
under Section 40 (2) and (3) is empowered to vary, modify or rescind
its order passed under Section 40 (1) of the Parsi Marriage and
Divorce Act, 1988, Act in any of following circumstances:

• If the court is satisfied that the party in whose favour an order has
been passed, has remarried ; or

• If such party is wife, that she has not remain chaste; or

• If such party is the husband, that he had sexual intercourse with any
woman outside wedlock.

Thus, in view of the change in circumstances of either party at any

time after it has made an order under Section 40 (1), the court may
vary, modify, or rescind at the instance of either party in such manner
as the court deem just,

(b) Evaluation of the Judicial Pronouncements

As it has been mentioned earlier that in this dissertation only landmark

and trend setter judicial decision has been put forth. Since the Parsi
community is a self satisfied community with the position of their

147
Supra Note 144, p. 114.

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existing laws, the number of litigation cases is almost negligible
regarding the maintenance of wife which can be said a trend setter and
landmark. This community is peace loving and has been free from the
controversies we see and had been watching in the other communities.
There is no denying the fact that the modern and forward looking
approach of the Indian Parses is praiseworthy. The self contentment of
the Indian Parses is undoubtedly a challenge to the other communities.

(c) Identification of Pitfalls

It is a well known fact that the Parsi community is a self satisfied

community towards their laws. It is a very progress looking community
and deals mostly matters according to their customs. The Parsi Law
regarding the Marriage, divorce or the matrimonial relief has been
amended in 1936 and 1988. The original Act148 was passed at the
express representation of the Parsi community. The Parsi Marriage and
Divorce Act, 1936, has amended the original Act, i.e., 'the Parsi
Marriage and Divorce Act, 1865'.The original Act was based on the
recommendation of the marriage committee of the Parsi Law
Association. The provisions of the Act were essentially based on the
Matrimonial Causes Act, 1858. As a general rule there is a
presumption that the Parsi is governed by English common law. 149 The
Parsi Marriage and Divorce Act, 1936 was also amended in 1988 and
the same is known as the Parsi Marriage and Divorce (Amendment)
Act, 1988.

Some pitfalls in the original Act i.e., the Parsi Marriage and Divorce
Act, 1865, were found by the Parsi community whose sentiments and

148
See Ardasar v. Arabai 9 Bom. 290.
149
Naroji v. Roges 4 Bom. HCRI; Bai Manek Bai v. Bai Meerbai 6 Bom. 363.

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values was for the time being governed by the Act of 1865. They
desired a variation in their legal resolve. The Act of 1865 had been
obtained after sincere endeavour of the community, yet the legislation
which followed the model of the British Matrimonial Causes Act,
1857, had featured that had became repugnant to the conscience of the
community, e,g., adultery or adultery coupled with some other
matrimonial offence were the extreme circumstances entitling the
aggrieved party to a divorce, the remedy of judicial separation was
available only to the wife etc.

It was the background that the Act of 1936 sought. The model of the
Act of 1936 largely follows that of its predecessor. It provides for
matrimonial remedies of divorce, dissolution and annulment of
marriage. Contemporary views of the community called for updating
the law. As a result the Parsi Marriage and Divorce (Amendment) Act,
1988, was enacted. This incorporates the advantageous aspect of the
Hindu Marriage Act, 1955, the Indian Divorce Act 1869; the Special
Marriage Act 1954 the Matrimonial causes act, 1965 and the
Dissolution of Muslim Marriage Act 1939.

(d) Advocacy of Reforms and Improvements

We have analyzed that the contemporary view of the Parsi Community

called for updating the law. The result is the Parsi Marriage and
Divorce (Amendment) Act, 1988. This incorporates the advantageous
aspects of the Hindu Marriage Act, 1955, the Indian Divorce Act,
1869, the Special Marriage Act, 1954, the Matrimonial Cause Act
1965 and the Dissolution of Muslim Marriage Act, 1939.

The remedy of divorce by mutual consent has been extended in favour

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of Parsi Spouses. The relief of alimony pendente lite and permanent
alimony technically known as ancillary relief is available to both
spouses without any discrimination on the basis of sex.

It shows that the Indian Parsi have shown the forward looking and
Modern approach towards their personal law. They have shown their
willingness to adopt the good and beneficial provisions from many
sister communities. There is no hesitation in the Parsi community to
adopt the beneficial provisions from any sister community.

It is to be a noteworthy fact that the population of the Parsi

community is very much lesser than the other communities in India.
They are peace loving people and satisfied with their existing laws.
Due to these reasons the number of the litigation cases in India is very
much negligible.

From the above discussion it can be concluded that the modern and
forward looking approach of the Indian Parsis are praiseworthy. The
self-contentment of the Indian Parsis is a challenge to the other Indian
minorities as their successful survival need the desirability of the
rational rethinking regarding the fate of their personal laws particularly
against the complexities of contemporary era. The discussion is clear
from the fact that at one hand there is a plethora of cases in Hindu and
Muslim community regarding the matrimonial causes which exert a lot
of pressure of the judiciary, on the other hand the cases of Parsi
community is almost negligible.

Therefore it seems to be correct to conclude that the present law

system of the Parsi community is satisfactory and not many instant
reforms are needed regarding the maintenance of wife.

390