Maintenance of Muslim women: personal law, the 1986 Act and section 144 BNSS

1. Maintenance under Muslim personal law

• Wife during marriage. The husband must maintain his wife (food, clothing and residence) even if she has means of her own, provided she has attained puberty and is faithful and obedient. She may refuse to live with him, without losing maintenance, if he has not paid her prompt dower or if he is cruel to her.
• Divorced wife. She is entitled to maintenance only during the iddat. If she is pregnant, until delivery.
• Widow. No maintenance during the iddat of death; she takes her share of inheritance and her unpaid dower.
• Unpaid dower becomes payable at once on divorce and is in a sense the security the law gives her for the future.

2. Section 125 CrPC and the early cases

Section 125 of the Code of Criminal Procedure, 1973 allowed a Magistrate to order a person of sufficient means to pay a monthly allowance to his wife unable to maintain herself, and its Explanation defined “wife” to include a woman who has been divorced and has not remarried. Section 127(3)(b) allowed the order to be cancelled if the woman had received the whole of the sum payable on divorce under the customary or personal law.

In Bai Tahira v. Ali Hussain Fissalli Chothia, 1978 INSC 203, (1979) 2 SCC 316, and Fuzlunbi v. K. Khader Vali, 1980 INSC 112, (1980) 4 SCC 125, Krishna Iyer J. held that a divorced Muslim woman is a “wife” under section 125, and that the dower paid can bar her claim under section 127(3)(b) only if it is a reasonable substitute for maintenance, not a token amount. In Zohara Khatoon v. Mohd. Ibrahim, 1981 INSC 39, (1981) 2 SCC 509, the Court held that a woman who obtains a divorce under the Dissolution of Muslim Marriages Act, 1939 is also covered.

3. Mohd. Ahmed Khan v. Shah Bano Begum (1985)

In Mohd. Ahmed Khan v. Shah Bano Begum, 1985 INSC 97, (1985) 2 SCC 556, a five-judge Bench led by Chandrachud C.J. upheld an order of maintenance to a 62-year-old woman divorced after more than forty years of marriage. The Court held:

• section 125 is a secular provision that applies to all persons irrespective of religion, and overrides personal law if there is a conflict;
• if the divorced wife is able to maintain herself, the husband's liability ends with iddat; if she is unable to maintain herself, she may claim under section 125 even after iddat;
• mahr is not an amount payable on divorce within section 127(3)(b), since it is a mark of respect for the wife and payable in consideration of the marriage;
• the Quran itself (verses 241 and 242 of Sura II) imposes an obligation to provide for divorced women.

The Court also urged the State to frame a uniform civil code under Article 44.

4. The Muslim Women (Protection of Rights on Divorce) Act, 1986

The judgment provoked strong protest, and Parliament enacted the 1986 Act. Its main provisions:

• Section 3(1): a divorced woman is entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) maintenance for children she nurses, for two years from their birth; (c) the amount of mahr agreed; and (d) all properties given to her before, at or after marriage by relatives, friends, the husband or his relatives.
• Section 3(2)–(3): if these are not paid, she may apply to a Magistrate, who may order payment within one month and enforce it by imprisonment.
• Section 4: after iddat, if she has not remarried and cannot maintain herself, the Magistrate may order the relatives who would inherit from her to maintain her, in proportion to their shares, and failing them the State Waqf Board.
• Section 5: the parties may, by a joint or separate affidavit at the first hearing, opt to be governed by sections 125 to 128 CrPC.

5. Danial Latifi v. Union of India (2001)

The Act was challenged as discriminatory. In Danial Latifi v. Union of India, 2001 INSC 468, (2001) 7 SCC 740, a Constitution Bench upheld it by reading it in a way that preserved the substance of Shah Bano:

• “Provision” and “maintenance” in section 3(1)(a) are different. The husband must make a reasonable and fair provision for the whole future of the divorced wife, including maintenance beyond the iddat period, and it must be made within the iddat period.
• The liability is not confined to the iddat. What is confined to it is the time within which the provision must be made.
• The Act does not offend Articles 14, 15 and 21, because, so read, a Muslim woman is not worse off than she would be under section 125.
• Liability of relatives and the Waqf Board under section 4 arises only if the husband's provision is not available.

6. After Danial Latifi: the Family Court and section 125

In Shabana Bano v. Imran Khan, 2009 INSC 1284, (2010) 1 SCC 666, the Court held that a divorced Muslim woman can claim maintenance under section 125 before the Family Court even after iddat, so long as she does not remarry. In Shamima Farooqui v. Shahid Khan, 2015 INSC 283, (2015) 5 SCC 705, the Court restored an award under section 125 that the High Court had cut down, holding that an able-bodied husband must maintain his wife and cannot plead that he has no income, and that maintenance must allow her to live with dignity, broadly in the manner she lived in her husband's home.

7. Mohd. Abdul Samad v. State of Telangana (2024)

In Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506, a Bench of Nagarathna and Masih JJ. settled the doubt. The husband argued that the 1986 Act, being a special law, ousted section 125 for divorced Muslim women. The Court held:

• section 125 is a secular, social justice provision available to all women, including divorced Muslim women;
• the 1986 Act does not exclude or override it; the two remedies exist side by side, and a woman may choose either;
• where orders are made under both, the amount awarded under one is taken into account under the other (section 127(3)(b));
• a woman whose marriage is affected by an illegal triple talaq may claim subsistence allowance under section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, and may also pursue section 125.

Nagarathna J. stressed that maintenance is a right of the wife and not charity, and that the section 125 remedy is an independent statutory remedy that does not depend on personal law. That is the sense in which alimony or maintenance for a divorced Muslim woman is now an independent remedy: she does not need to show anything beyond the conditions of the secular section.

8. Section 144 BNSS: the current provision

From 1 July 2024, section 125 CrPC is replaced by section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in substantially the same terms. Its Explanation keeps the definition of “wife” as including a woman divorced by or who has obtained a divorce from her husband and has not remarried. Interim maintenance is to be decided, as far as possible, within sixty days of service of notice. Section 146 BNSS (old section 127) deals with alteration and cancellation, and section 146(3)(b) carries forward the rule about sums received under personal law. The ratio of Abdul Samad applies to section 144.

9. Problem

Raheem divorced his wife Salma on 10 June 2024. She has no income of her own and needs maintenance. Advise her.

Issue. What remedies Salma has for maintenance after divorce, and under which law.

Law. Section 3(1) of the 1986 Act entitles a divorced woman to a reasonable and fair provision and maintenance within iddat, her mahr and her properties; Danial Latifi requires the provision to cover her future. Section 4 makes relatives and the Waqf Board liable if she cannot maintain herself after iddat. Section 125 CrPC, replaced from 1 July 2024 by section 144 BNSS, is available to a divorced woman who has not remarried and cannot maintain herself (Shah Bano, Shabana Bano, Mohd. Abdul Samad). If the divorce was by instant triple talaq, it is void under section 3 of the 2019 Act.

Application. First, the mode of divorce must be ascertained. If Raheem pronounced talaq-e-biddat, the divorce is void; Salma remains his wife, Raheem is liable to prosecution under section 4 of the 2019 Act, and she may claim subsistence allowance under section 5 and custody of minor children under section 6, as well as maintenance as a wife under section 144 BNSS. If the divorce was valid (ahsan or hasan), she is a divorced woman. She may apply to the Magistrate under section 3 of the 1986 Act for a fair and reasonable provision for her future, her unpaid mahr and her property. As her application would be made after 1 July 2024, the secular remedy she would invoke is section 144 BNSS, which Abdul Samad holds is open to her whatever she does under the 1986 Act. The court will take into account anything already paid. If Raheem cannot pay, she may claim under section 4 against her relatives or the Waqf Board.

Conclusion. Salma is entitled to maintenance. The best course is a petition under section 144 BNSS before the Family Court (with interim maintenance), together with or in addition to a claim under section 3 of the 1986 Act for provision, mahr and her properties. Her right continues until she remarries.

How this is examined

The Raheem and Salma problem is set in recent papers and is answered as above; the date of divorce is there to test whether you know that section 144 BNSS has replaced section 125 CrPC. A 10-mark essay asks for “maintenance of a divorced Muslim woman”: personal law, Shah Bano, the 1986 Act, Danial Latifi, Abdul Samad and section 144 BNSS, in that order. Short notes may ask for Shah Bano or Danial Latifi alone.