Maintenance

The law of maintenance, particularly the maintenance of the wife, has created history in the arena of Islamic Law of India. Under Islamic Law, a husband is entitled to maintain his wife throughout the subsistence of marriage and after divorce till the period of iddat.

The harmonious construction of these two provisions made by Iyer J in Fuzlubi v. K.Khader Vali²¹ and Bai Tahira v. Ali Hussain Fidaalli Chothia²² did not lead to any controversy and was peacefully admitted. However, in Shah Barn²² the inter­pretation of these concepts opened many floodgates. The Supreme Court did not confine itself to the legislative provisions but interpreted the Quranic verses; a fair provision (i.e., mata) which is mentioned in the verses of Holy Quran was also referred to and accordingly a lifelong maintenance of divorcee was reaffirmed, completely ignoring the provisions of section 127(b). This invited resentment from traditional ulema and afterwards, Muslim masses. In order to overpower the furore of Muslims against the intervention in their law and religion, the legislature passed a law known as the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter Act, 1986), owing to which a Muslim wife is exempted from the provisions of CrPC. Though the validity of this Act has been upheld by the apex court since then, the Supreme Court itself has decided the case under CrPC to award maintenance to the Muslim wife, keeping aside the later Act of 1986.²⁴

In one instance, a Muslim husband had requested for restitution of conjugal rights and the wife had applied for a decree of divorce. The dismissal of the peti­tion for the decree of divorce, according to Iyer J, did not ipso facto lead to allow­ing the petition for restitution of conjugal rights; besides the wife was entitled for maintenance even if both the petitions were dismissed.²⁵ When called upon to decide the issue of maintenance, Iyer J very wisely interpreted section 125 of CrPC.²⁶ The husband had divorced his wife. Thereafter, the wife moved the magistrate under section 125 CrPC for grant of maintenance to herself and her son, which was granted. On appeal, the sessions judge held that the court had no jurisdiction under section 125. The High Court dismissed the wife’s appeal.

The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obliga­tion, not by a ritual exercise rooted in custom. No construction, which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalized substitute for the order under section 125, then section 127(3) (b), sub serves the goal and relieves the obligor not pro tanto but wholly the purpose of the payment “under any customary or personal law” must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. There must be a rational relation between the sum so paid and its potential as provision for maintenance.

The misery of a divorcee was also recognized by the famous Indian Muslim jurist, Maulana Ashraf Ali Thanvi, while he was advising his disciple and leading scholar, Abdul Majid Dharahadi, who wanted to seek separation on the ground that the marriage had irretrievably broken down. Maulana’s reply in this regard was significant²⁷:

I agree with you that you would arrange another husband for her.

The understanding of Iyer J about the true spirit of law of maintenance and its exposition had saved the nation from any furore. However, legislation was brought in a hurried manner after the controversial judgment of Shah Bano.²⁸ KNC Pillai has rightly remarked that Iyer J’s intelligent way of interpretation of section 125 CrPC in Fuzlumbi and Bai Tahira²⁹ could have helped the nation to avoid the Act, 1986. As an aftermath of controversial judgment of Shah Bano,³⁰ the above-mentioned legislation came into being with many pitfalls. This legisla­tion provided maintenance to a divorcee through the waqf property in case no other relative is available (living) and capable of maintaining her. This is highly problematic as the law of waqf is not similar to law of trust and the state has no authority to invest the usufruct of the waqf property for the purpose it is not dedicated to by the dedicator (waqif). It would be worth mentioning the observa­tion of Iyer J³¹:

It is an ultra vires injustice to the Law of the waqfs because waqfs are not trusts to look after privatized wrongs inflicted by the irresponsible talaqs.

VI.