Prior to the Supreme Court decision in Md. Ahmed Khan v. Shah Bano Begum, the textbook writer, including the present author, expressed the view that a divorced Muslim wife was not entitled to any maintenance from her husband after the expiry of the period of idda. The law is as under:
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Muslim law givers lay down different rules regarding the claim of maintenance by wife when the marriage is dissolved by death or when it is dissolved by divorce. When the marriage is dissolved by death, the wife is not entitled to maintenance during the period of idda.
ADVERTISEMENTS:
When a marriage is dissolved by divorce, the wife is entitled to maintenance during the period of idda. If the divorce is not communicated to the wife even after the expiry of the period of idda, she is entitled to maintenance till it is communicated to her.
The Shias and Shafis lay down that the wife is not entitled to maintenance even during the period of idda, if the marriage is dissolved in the irrevocable form. They, however, admit that if the irrevocable divorce is pronounced during the period of pregnancy, the wife is entitled to maintenance until delivery.
The Muslim authorities also lay down that if the marriage is dissolved on account of wife’s apostasy, or for some cause of criminal nature, then she is not entitled to maintenance even during the period of idda.
On the expiration of the period of idda, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognize any obligation on the part of a man to maintain a wife whom he had divorced.
ADVERTISEMENTS:
Such has been the view that even where maintenance is granted to a Muslim wife under Section 488 of the Code of Criminal Procedure and then she is divorced by her husband, she is not entitled to maintenance. In Mulla’s Mohamedan Law, we have the following statement:
Where an order is made for the maintenance of wife under Section 488 of the Criminal Procedure Code (Section 125 of the new Code) and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat.
The result is that a Mahomedan may defeat an order made against him under Section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her iddat.
It was in view of this opinion that the Criminal Procedure (Amendment) Act, 1973, remodelled the old Section 488 and the new provision (now Section 125) and Explanation (b) to clause (1) of Section 125 defines “wife” as to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. But Chandrachud, C.J., felt that even without the amendment, a Muslim has an obligation to maintain his divorced wife under the Muslim Personal Law.
ADVERTISEMENTS:
Commenting upon the aforesaid statements of the textbook writer, Chandrachud, C.J., observed that these texts were inadequate to establish the proposition that the Muslim husband is not under any obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.
One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and its duration, of the husband’s liability to provide for maintenance of an indigent wife who has been divorced by him. His Lordship then observed:
We consider it not only incorrect but unjust, to extend the scope of the statements to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife…. The argument of the appellant that according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat.
Then the learned Judge speaking in the context of Section 125, Criminal Procedure Code observed that if she is unable to maintain herself, she can take recourse to Section 125 of the Code.
He added, “There is no conflict between the provisions of Section 125, Criminal Procedure Code, and those of Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
Then with great learning, Chandrachud, C.J., proceeds to show that it is wrong to say that under Muslim Personal Law, the divorced wife is not entitled to maintenance. He quotes verses 241 and 242 of the Koran:
For divorced woman maintenance should be provided on a reasonable scale.
This is duty on the righteous.
(Ayat 241).
Thus, doth God make clear His sings to you: in order that you may understand.
(Ayat 242).
The Running Commentary on the Holy Koran by Dr. Allamat Khadim Rahmani Nuri on Aiyat No. 241 runs thus:
And for the divorced woman also a provision should be made with fairness in addition to her dower. This is a duty incumbent on the reverent. (1964 Ed).
Muhammed Zafrullah Khan gives the English version of these Ayats thus:
For divorced woman also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus, does Allah His commandments clear to you that you may understand.
We may also note the translation of Aiyats 240-242 as given by the Board of Islmaic Publications:
Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a years’ maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way. Allah is All-powerful.
All-wise, likewise the divorced woman should also be given something in accordance with the known fair standard. This is an obligation upon the God fearing people. It is interesting to note that the All India Muslim Personal Law Board submitted the Supreme Court that the exhortation is to be more pious and the more God-fearing, not to the general run of the Muslims.
Taken to its logical end the argument would mean that the sinners and the kafirs are free to avoid the obligations of providing maintenance or provision for their divorced wives. Then does the Board want to reduce most Muslims to sinners and kafirs? In this context the following observation of Dr. K.R. Nuri in his preface should be read by all including the members of the Board:
Belief in Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. Words without deed carry no meaning in Islam. Therefore, the term “believe and do well” has been used like a phrase all over the Quran.
Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments.
Thus, it is evident that the Koran imposes an obligation on a Muslim to make provision for or provide maintenance to the divorced wife. The learned Judge observed that the contrary argument does less than justice to the teaching of the Koran. This, it is submitted, is a view not only in consonance with the Koran but also with the concept of social justice enshrined in our Constitution.
In Arab Ahemadha v. Arab Bail, the Gujarat High Court held that a divorced Muslim wife is entitled to maintenance even after the period of idda as well as under Section 125, Cr. P.C. She is entitled to reasonable and fair amount of maintenance, i.e., courts should see that divorced wife gets sufficient means of livelihood after divorce and that she does not become a destitute or is not thrown on the streets without a roof over her head and without any means of sustaining herself and her children. This is even after the passing of the Muslim Women (Protection of Rights and Divorce) Act, 1986.