ABSTRACT
In India women have a right of maintenance from her husband and therefore there are various laws present for the same including some personal laws based on their religion like Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 144 of Bhartiya Nagarik Suraksha Sanhita, 2023. The rights guaranteed to women, especially in the private law and civil law systems, play an important role in providing economic security after divorce or separation. This paper examines the right entitled to a Muslim women to live under the Muslim law, and how these rights were interpreted and followed in India. It subsequently focuses on constitutional provisions related to maintenance rights of women.
Under Muslim personal law, maintenance (nafqa) is generally limited to the period of iddat (the period of waiting after divorce). However, efforts have been made to create a balance between the religious principles and the need for social justice through judicial interventions and legislative acts such as the ‘Muslim Women (Protection of Rights on Divorce) Act, 1986.’This has led to an ongoing dialogue between private and constitutional law.
Major legislative changes to replace the colonial era Code of Criminal Procedure (CrPC) while Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces new provisions aimed at streamlining legal procedures, including those related to accommodation about and ensure that women from all communities, including Muslim women, receive adequate financial support after separation.
KEYWORDS
Maintenance, India, Muslim Law, Divorce, BNSS, Criminal Law.
INTRODUCTION
Maintenance depicts the taking care of another person by providing them sources by which they are able to fulfil their basic requirements and needs. In simple words the basic needs include food, shelter, clothing, education, health facility, etc of the person maintained. The right of maintenance is recognised under various laws in India. One of the best ways to judge a country’s progress is by looking into the status of women in that country. India consists of Hindu as well as Muslim women and both being culturally diverse are governed as per different laws.
Muslim Laws are usually based on Quran and Hadith. Under Muslim Law it is the liability of the husband to maintain his muslim wife and provide her with all the basic necessities. “In the word of Schacht:The maintenance of the wife comprises food, clothing and lodging, that is a separate house or a separate room which can be locked for a well to do also a servant. She is not obliged to bear any part of expenses of the matrimonial establishment.”1
Not only the personal Muslim Law but the criminal law that is Bhartiya Nagarik Suraksha Sanhita comes into action in case of failure by the husband to maintain his wife. Under this act the right of a wife of any religion to claim maintenance is irrespective of her personal laws.
This paper attempts to showcase a holistic view of maintenance rights of muslim women and maintenance under Bhartiya Nagarik Suraksha Sanhita, 2023 to its readers. The BNSS seeks to provide a uniform approach to the inclusion of maintenance fees in individual codes. This paper examines how the BNSS interacts with existing Muslim personal law, examining whether it provides increased protection or poses new challenges. The broader implications of this change are examined, such as its compatibility with constitutional principles of equality and non-discrimination.
Finally, the study seeks to understand whether BNSS strengthens the status of Muslim women in the Indian legal system or continues to allow for exceptions to private law that may restrict their right to care in a appropriately the mouth. The abstract explores these questions in detail in order to provide a comparative analysis of the remedial legislation applicable to Muslim women in the context of the new legislative amendments in the BNSS, 2023.
Research Methodology
This paper consists of description in depth of maintenance and the research is based on secondary sources for the deep analysis of the laws relating to maintenance of women and their maintenance rights in India. Secondary sources of information include newspapers, commentaries and websites for the purpose of research.
History of Maintenance
The concept of maintenance for women has a long history spanning multiple cultural, religious, and legal systems. It evolves more and more over time, reflecting changing societal views on gender roles, marriage and the rights of individuals following divorce or separation.
- Ancient Period
In ancient societies, marriage was often seen as a contract of economic exchange, and married women were economically dependent on their husbands, where the primary care was to maintain social order and family responsibilities instead of ensuring that the woman has an independent livelihood.
Early Hindu law as recorded in texts such as the Manusmriti strongly emphasized the duty of a husband to maintain his wife. Even after separation, this duty was extended to ensure that the woman was supported, although the concept of care was more closely tied to her chastity and adherence to social norms.
- Medieval Period
The medieval period saw the strengthening of laws and customs concerning the maintenance of marital relations and women. The Islamic legal system provided care for wives during and after marriage.
In the seventh century, Islamic law introduced a comprehensive system of maintenance called ‘nafaqah’. According to Islamic principles, the husband is obliged to pay maintenance to his wife even during the iddat (waiting period after divorce) during the marriage but the obligation of maintenance ceases after the period of iddat. Islamic law made some progress during his time, giving women certain economic rights even after divorce.
- Colonial and Pre independence Era
During the colonial period, European powers, especially Britain, introduced their legal systems in various colonies, significantly altering indigenous legal practices concerning marriage and maintenance.
In England, maintenance under the common law was limited and generally based on the conduct of the wife. After a court separation, the wife could claim “maintenance,” although divorce was rare until the 19th century. The Divorce and Matrimonial Causes Act of 1857 introduced the possibility of divorce and subsequent maintenance.
- Post-independence Era
As states gained independence, their legal systems sought to balance traditional religious law with modern constitutional principles, especially in the areas of gender equality and social justice.
In post-independence India, the issue of maintenance was debatable.
Hindu law reforms in the 1950s like
- the Hindu Marriage Act, 1955, provided for maintenance rights for Hindu women.
- Muslim Law, on the other hand, is a personal law. The famous “Shah Bano case (1985)”1 brought national attention to the issue of maintenance for divorced Muslim women under Section 125 of the Criminal Procedure Code (CrPC) further directing to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which put a limit of maintenance to the Iddat period, unless the woman could not support herself.
REVIEW OF LITERATURE
Concept of maintenance under Muslim Law
Different religions have a different understanding towards maintenance. The Arabic term ‘Nafaqah’ translates to maintenance. Under the Muslim Law the husband is absolutely liable to maintain his wife. It is stated in Quran “Men are the protectors and maintainers of women because Allah has given the men more strength than that of women and because they support them from their means. Therefore, the righteous women are devoutly obedient and guard in the husband’s absence what Allah would have them guard.”2 and this clearly depicts the liability of a man to maintain his wife.
Earlier as per the old Muslim laws the maintenance right was levied only on the wife and on divorce her right of maintenance was lost. The husband was only obligated to maintain his wife as long as she was obedient.
Liability Of Maintenance
As per the Muslim law a wife is entitled to maintenance only when she knows that she has been divorced or pronounced ‘Talaq’ by her husband. This right related to maintenance of a woman is absolute and not subject to any condition on her ability to maintain herself. Herein maintenance includes all the basic need such as food, clothing, shelter, etc.
However there are certain conditions under which a Muslim woman looses her right to claim maintenance from her husband. They are as follows:
- She is yet to attain puberty.
- She has left her husband and her duties of a married wife with sufficient reason.
- Where she absconds with some man which is not known as her husband.
- In a case where she is not obedient towards the reasonable commands of her husband.
Under Muslim Law there exist different schools who have opined about when does the right to maintenance of a woman arise. These are as follows:
- Hanafi School:
This school affirms that a woman must be maintained when she is in fact pregnant and thereof has been divorced by her husband on his pronouncement of ‘talaq’ thrice.
- Maliki School:
This provides that the wife will be entitled to only residence as maintenance and not anything else if she is not pregnant.
Quantum of Maintenance
However it completely depends on the will of the court to decide upon the quantum of maintenance and no provision of any other personal law exists to decide the same.
Yet there exists two contentions under the Muslim Law:
- According to Hedaya, the quantum of maintenance is inclined on the financial condition of the husband.
- According to the Shia law, the quantum of maintenance derives from the requirements of the wife.
Duration of Maintenance
As per “Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a husband under Muslim law is liable to make reasonable and fair provision for the future of the divorced wife”.1
Under the Muslim law a widow is not entitled to maintenance during her iddat period but a divorced woman is entitled to maintenance from her husband even during her period of iddat.
Maintenance under anti-nuptial agreements
A Muslim marriage is a contractual marriage wherein the conditions including the rights and duties of the husband and the wife a mentioned and so in case of breach of any stated conditions the wife has the right to live separately and thereon is entitled to maintenance from the husband as provided in the contract.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986
This Act was passed to ensure that the rights of Muslim women are safeguarded after their divorce. This was enacted in response to the famous Shah Bano Case considering the rights of women after divorce under section 125 of CrPc, 1973 (now section 144 of BNSS, 2023).
Some important provisions of this Act are :Section 3(a), which states that a Muslim husband is liable to make fair and reasonable provision for the future of the divorced wife.”2
- “Section 3(1)(a), which states that the husband has to make a fair and reasonable provision for the maintenance of the wife beyond the iddat period.”
- Section 4(1), which states that women can claim maintenance from her relatives who are entitled to her property after her death.
MAINTENANCE UNDER BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (BNSS)
The right to maintenance of a woman doesn’t confines to personal laws only but is spread over the criminal laws as well.
Earlier considered as Code of Criminal Procedure of 1973 now the following provisions of BNSS concern with the maintenance rights of women.
“Under section 144 of Bhartiya Nagarik Suraksha Sanhita, 2023 is given the provision of maintenance to wife, children, and parents. Here given if any person leaving sufficient means or refuses to maintain his wife (unable to maintain herself) A magistrate of first class may upon proof order such person to allot a monthly allowance for the maintenance of his wife.”1
Herein, the term wife includes divorced wife. Under this any wife who live separately from her husband due to his second marriage even she is entitled to claim maintenance.
Section 145 of BNSS talks about the procedure of proceeding under section 144 may be taken against any person.
Section 146 of BNSS talks about the alteration in allowance as given under section 144 of the Act.
CASE LAWS
In Md. Muhammad Azizullah v. Abdul Halim
“It was said that Section 488 of the criminal procedure code includes a constitutional right that is independent of any personal law. The right imposed on the wife by section 488 of the criminal Procedure Code is not affected by any personal law, and it is not valid to
apply the Mohammedan law instead of the statutory law. The current clause of the section gives the wife more autonomy than the previous one, but that does not provide that personal law will overpower it.”1
In Mohd Ahmed Khan v. Shah Bano Begum
“In this case, Section 125 of the Criminal Code was a case in point where it was mentioned that a Muslim woman has the right to sue under Section 125, if she is unable to maintain herself after the expiry of the period of Iddat.”2
In Mohammad Haneefa v. Mariam bi
“In this case it was held that in case of a conflict between the criminal law and the personal law the provisions of personal law shall prevail.”3
In Saira Bano v. A.M Abdul Gafoor
“The decision pronounced in the precedent Mohammad Haneefa v. Mariam bi was prevailed in this case.”4
In Danial Latifi and another v. Union of India
“The Shah Bano case set a precedent in this case. In this case the Supreme Court of India held that
- Under Muslim law the husband is liable to a fair and necessary provision for the maintenance of the wife beyond the iddat period.
- It is the Muslim husband’s obligation to pay maintenance to his divorced wife beyond the Iddat time under section 3(1)(a) of the act.
- Under section 4 of the act, a Muslim woman can claim maintenance from her relative.
- The provisions of the Act do not violate provisions of Indian constitution including Articles 14, 15, or 21 of it, hence it is constitutionally valid.”5
CONCLUSION AND SUGGESTIONS
Muslim law being a personal law has its own way to address maintenance as the basic needs like food, clothing, shelter, health facilities, etc. and considers men obligated towards their wives to maintain them. On the other hand, the criminal law of India is secural in nature and therefore is an umbrella for considering maintenance rights of women as a whole irrespective of their religion.
Furthermore, the introduction of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a major change in law, as it provides a uniform mechanism for redress across communities, and ensures that women of Muslim family members are affected are entitled to adequate financial assistance. This development creates a level playing field and reinforces the constitutional principles of equality and non-discrimination.
The landmark case of Shah Bano has been addressed in many cases as precedent to decide upon them.
Considering the secularism in our country the criminal law ensures the eviction of any inequality in the rights of maintenance of women.
BY;
VIDMITA SONI (BA.LLB)
TRINITY INSTITUTE OF PROFESSIONAL STUDIES, DWARKA (GGSIPU)