Introduction
to Mahr, Dower
In old pre-Islamic, Arabia, when the
institution of marriage as we know it today was not developed many forms of sex
relationships between man and woman were in vogue. Some were temporary and
hardly better than prostitution. Men, after despoiling their wives, often
turned them out, absolutely helpless and without any means, the ancient custom
to settle certain sums for subsistence of the wife in the event she was turned
out was often disregarded, as there was no organized system of law.1
Sometime
the guardian of the bride used to take the dower himself; but it is not certain
whether it was a mere violation of the usage that the bride should take the
dower, or whether it shows that dower was originally the price paid for the
bride to her parents.2
A
device was in vogue under the name of SHIGHAR marriage in which a man would
give his daughter or sister in marriage to another in consideration of the
latter giving his daughter or sister in marriage to the former. Thus neither of
the wives could get a dower. False accusations of unchastity were frequently
used to deprive the wife of her dower.3
In
the so called Beena marriage, where the husband visited the wife but did not
bring her home, the wife was called Sadiqa or female friend, and a gift given
to wife on marriage was called, Sadaq, In Islam Sadaq simply means a dower and
is synonymous with Mahr (sale price). But originally the two words (Sadaq and
Mahr) were quite distinct. Sadaq was a gift to the wife in the Beena form of
marriage and mahr was gift or compensation to the parents of the wife in the
baal form of marriage.4
Mahr belongs to the marriage of domination, which is known as the baal
marriage, where the wife‟s
parents (guardian) part with her and have to be
1 Aqil
Ahmad, Text Book ofMohammedan Law, p. 149 (2006)
2 Syed
Khalid Rashid, Muslim law, p. 88 (2009), revised by Prof. V. P. Bharatiya
3 Aqil
Ahmad, Mohammedan Law, p. 149 (2006).
4 Ameer
Ali, Mohammedan Law, Vol. II p. 432-4, Vols. I-II, Calcutta 1912, 1929,
new addition by Tahir Mahmood (1985).
compensated.5
Promulgation of Islam gave a new form of nikah to marriage, abolished this
ancient custom and forbade unjust acts towards the fair sex, as is evident from
the Quran”. If you separate yourself from your wives, send them away with
generosity: it is not permitted to you to appropriate the goods you have once
given to them”. Thus the custom originated in ancient times with the payment
which husbands often made to their wives as means of support in their old age or
when turned out by them. Mahr in the baal form of marriage was also recognized
by the Prophet to ameliorate the position of wife in Islam, and it was combined
with Sadaq, so that it became a settlement or a provision for the wife.6
In Islamic law Mahr belongs absolutely to the wife, although historically
speaking it is more akin to bride‟s
price than gift or anything else.
Mahr
Definition
Mahr or dower is a sum that becomes
payable by the husband to the wife on marriage, either by agreement between the
parties or by operation of law. It may either be prompt (Mu‟ajjal), or
deferred {Mu wajjal).
Concept
of Dower (Mahr)
The
concept of mahr in Islam has unfortunately been much misunderstood and
is sometime misinterpreted since it is either understood as a consideration
made by the man to the women as bride-price or dower, but in reality, is none
of these. A close definition has been forwarded by the Kifayah and Hedayah
in the Fatawa-i- Alamgiri as not the exchange or consideration given by
the man to the women, but an effect of the contract imposed by law
on the
husband as a taken of respect for its subject, the women.
The Privy Council describes it as an
essential incident to the status of marriage. Farther the in ayah defines it as
the property which is incumbent on a husband, either by reason of its being
named in the contract of marriage or by virtue of the contract itself and it is
known by several names such as muhr, sudak, nuhlah and akr.7
5A.A.A.
Fyzee, Outlines of Muhammadan Law, p. 105 (2008) edited and revised by
Tahir Mahmood.
man to the woman for
entering into the contract; but an effect to the contract imposed by the law on
the husband as a token of respect for its subject, the
woman.8
According to Wilson, “Dower” is a
consideration for the surrender of person by the wife. It is the technical
Anglo-Mohammedan term for its equivalent „Mahr‟ in
Arabic.
According
to Ameer Ali, “Dower” is a consideration which belongs absolutely to the
wife.
According
to Mulla “Dower” is a sum of money or other property which the wife is
entitled to receive from the husband in consideration of the marriage. The word
„consideration‟
is not used in the sense in which the word is used in the Indian Contract Act.
It is not obligation imposed upon the husband as a mark or respect to the wife.
Dr.
Jung defines “Dower” as the property or its equivalent, incumbent on the
husband either by reason of being agreed in the contract of marriage or by
virtue of a separate contract, as special consideration of Buza, the
right of enjoyment itself.
Hon'ble
Justice Mahmood has said in
Abdul Kadir v. Salima, that „Dower under the Muslim law is a
sum of money or other property promised by the husband to be paid or delivered
to the wife in consideration of marriage, and even where no dower is expressly
fixed or mentioned at the marriage ceremony, the law confers the right of dower
upon the wife‟.
In
Saburannessa v. Sabdu Sheikh, Calcutta High Court has observed
that Muslim marriage is like a contract of sale in which the wife is the
property and dower is the price.
The
above opinions are based on the argument that marriage is a civil contract and
dower is a consideration for the contract. But it is submitted that the above
opinions are erroneous, because even in those cases where no dower is specified
at the
8 N.B.E.
Baillie, Digest of Moohummudan Law, Vol. I, p. 195 (1980).
3
time of marriage,
marriage is not void on that account, but the law requires that some dower
(proper dower) should be paid to the wife.
Abdur Rahim correctly
observes, “It is not a consideration proceeding from the husband
for the contract of marriage, but it is an obligation imposed by the law on the
husband as mark of respect for the wife as is evident from the fact that the
non-specification of dower at the time
of marriage
does not affect the validity of marriage”.
Nature
of Dower
Dower in the present from was introduced
by the Prophet Mohammad and made obligatory by him in the case of every
marriage. Dower in Muslim law is somewhat similar to the danatio propter
nuptias in Roman law. The important difference, however, is that while
under the Roman law it was voluntary, and under the Muslim Law it is absolutely
obligatory.
Islam insists that dower
should be paid to the wife herself. It sought to make dower into a real
settlement in favour of the wife, a provision for the rainy day and socially, a
check on the capricious exercise by the husband of this almost unlimited power
of divorce.
The
following points may be noted with respect to the nature of Dower:
1. Analogy is often drawn
between a contract for dower and one for sale. The wife is considered, to be
the property and the dower her price.
Mahmood,
J., In Abdul Kadir v. Salima, gives the best description of the
nature of dower. He observes:
“Dower,
under the Muhammadan Law, is a sum of money or other property promised by the
husband to be paid or delivered to the wife in consideration of the marriage,
and even where no dower is expressly fixed or mentioned at the marriage
ceremony effect of marriage. To use the language of the Hedaya, the
payment of dower is enjoined by the law merely as a token of respect for its
object (the woman), wherefore the mention of it is not absolutely essential to
the
validity of a marriage;
and, for the same reason, a marriage is also valid, although a man were to
engage in the contract on the special condition that there should be no dower”.9
9 ILR
(1886) 8 All 149.
4
“Even
after the marriage the amount of dower may be increased by the husband during
covertures”.10
2.
It is regarded by some
eminent authorities as a consideration for conjugal intercourse. In a case, Smt.
Nasra Begum v. Rizwan Ali,89 Allahabad High Court expressed the view
that the right to claim prompts dower proceeds cohabitation.
3.
Dower is an essential
incident and fundamental feature of marriage with the result that even if no
dower is fixed the wife is entitled to some dower from the husband. The
marriage is valid even though no mention of dower made by the contracting
party.
The
amount fixed for Mahr is usually a mutually agreed between the parties
and if the parties are competent to marry, they may fix their own Mahr
at the time of contracting their marriage contract. At any event it is
enforceable in law.
Importance
of Dower
Fatwai-i-Quazi
Khan says, “Mahr is so necessary to marriage
that if it were not mentioned at the time of the marriage, or in the
contract, the law will presume it by virtue of the contract itself‟.
It
is essentially an incident of the Muslim law of Marriage that even if there is
stipulation on the part of the woman before marriage to forego all her right to
dower, or even if she agrees to marry without any dower, the stipulation or
agreement will be invalid.The reason of its importance lies in the protection
that it imparts to the wife against the arbitrary exercise of the power of
divorce by the husband. In Muslim Law, the husband can divorce his wife at his
whim and so the object of dower is to check upon the capricious exercise of the
husband of his power to terminate the marriage at will. It not only protects
from his unbridled power to divorce but also from his extravagance in having more
than one wife. A stipulation to charge a huge dower on the occasion of his
another marriage is enough to deter him from enjoying the luxury of having two,
three or four wives.
In Abdul Kadir
v. Salima,11 Mahmood, J.,
has observed:
The marriage contract is easily
dissoluble, and the freedom of divorce and the rule of polygamy place the power
in the hands of the husband which the law-giver intended to restrain by
rendering the rules as to payment of dower stringent on the
10Syed Khalid
Rashid, Muslim Law, p. 89 (2009).
11 ILR
(1886) 8 All 149
5
husband. That is why the
right of the wife to her dower is a fundamental feature of the marriage
contract; it has a pivotal place in the scheme of the domestic relation
affecting the mutual rights of the spouses at more than one point.
The question with regard to dower does not
arise in case of marriages solemnized under the Special Marriage Act, 1954. But
the right to Mahr fixed in a marriage first contracted under Muslim Law
will not be forfeited merely by the fact of registration of the marriage under
the Special Marriage Act, 1954.
The
Object of Dower
The object of
dower is three-fold:
(i)
to impose an obligation on the husband as
a mark of respect of the wife;
(ii)
to place a check on the capricious use of
divorce on the part of husband; and
(iii)
to provide for her
subsistence after the dissolution of her marriage, so that she may not become
helpless after the death of the husband or termination of marriage by divorce.12
Fixation
of Mahr in Indian laws
The
Indian Ulama recommended in a seminar that Mahr (dower) should be
fixed in terms of gold or silver so that the rights of women are fully
protected in the event of fall in the values of currencies.13
Since Mahr is an integral part of
Muslim marriage, it may be fixed by an agreement between the parties; in case
it is not done, it will be determined by operation of law.
With the exception of the Hanafis
and the Malikis, among whom a minimum amount (though not maximum) of
dower is laid down, Muslim law givers do not fix any minimum or maximum amount
of Malikis at three dirhams. In India, the value of ten dirhams
is between Rs. 3-4. Thus, the minimum of mahr in both schools is
nominal. The peculiar feature of Muslim law of mahr is that no maximum
amount of mahr is prescribed, and, therefore, a husband is free to fix
any amount of mahr, even though it is beyond his means or ability
to pay or earn. Whenever a claim is made to enforce the payment of the amount
of the dower, the Court ordinarily awards the entire amount stipulated in the
contract.
12Aqil
Ahmad, supra note at 153
13 Social
Issues Decision of Indian Ulam, p. 14.
6
Sometimes,
with a view to preventing the husband from divorcing his wife, the amount of mahr
is deliberately fixed very high. The husband cannot plead in equity and say by way
of his defence, that the amount is too excessive and beyond his means. In only
two states, Oudh (now part of the Uttar Pradesh) and Jammu and Kashmir, it has
been laid down statutorily that the Court may not award the amount of dower as
stipulated in the contract if it finds it too excessive, and may award an
amount which it considers to be reasonable with reference to the means of the
husband and the status of the wife at the time of payment of mahr. It is
surprising that under either statute, the Court has no power of raising the
amount of mahr if it finds it to be too low, considering the means of
the husband and the status of the wife.14Fazee
states; “The amount of mahr may either be fixed or not; if is fixed it
cannot be a sum less than minimum laid down by the law as follows:15
(a) Hanafi
law :
10 dirhams
(b)
Maliki law : 3 dirhams
(c) Shafei
law : no
fixed minimum
(d) Shia
law : no fixed minimum
Under
Ithna Ashari and Imamia Ismaili laws there is no legal minimum of
mahr. However, under the Fatimid Shiah law it should not be less
than ten dirhams," the regular mahr among the Sulaymani
Bohras is Rs. 40 at present. The Daudi Bohras have no fixed amount,
but the usual mahr is Rs. 51 Rs. 110 or more”.
The
amount of mahr may exceed the legal minimum, but all schools of law
strongly recommend moderation, and some are of the opinion that mahr
should not exceed the amount which the Prophet bestowed on his wives known as mahr
ul-Sunnah. However, where the husband has the capacity he may stipulate as
much as he can afford according to Al-Nahr “so much of gold as an
ox hide can contain”. Thus,
“there
seems to be no legal limit for dower; and dowers of very large amounts have
been sustained by courts of justice in India”.
Mahr need
not be a sum of money; any type of property can be conferred by way of mahr.
Anything, which falls within the meaning of mal, and has value, may, according
to the Hanafi law, form the subject of dower. Even instructions in the
Koran may be the subject matter of Mahr. It may, on the other hand, be
immovable property, land or house. If immovable property of the value of Rs.
100 or more is
14Paras
Diwan, Muslim Law in Modern India,p. 70 (2008).
15 A.
A. A. Fyzee, Outlines of Muhammadan Law, p. 107 (2008).
given by way of dower,
and the wife is put into possession, she cannot be dispossessed even if there
is no registered deed, Section 54A, Transfer of Property Act, 1872, will apply.
Usually
a written deed of mahr known as mahr nama is executed; but no
deed is necessary.
It
has been earlier stated that when dower is fixed by a contract between parties,
it is known as specified dower; when dower arises by operation of law, it is
known as proper dower.
Increase
or Decrease of Dower
The
husband may at any time after marriage increase the dower. Likewise, the wife
may remit the dower wholly or partially.
A Muslim girl who has attained puberty is
competent to relinquish her Mahr although she may not have attained
majority (18 years within the Indian Majority Act). The remission made by the
wife, should be with free consent. The remission of the Mahr by a wife
is called Hibe-e-Mahr.
In
a case where the wife was subject to mental distress, on account of her husband‟s death the
remission of dower, was considered as against her consent and not binding on
her.
(i)
Kinds of Dower in Indian Laws
We have seen that
dower is payable whether the sum has been fixed or not.
Ali said: “There
can be no marriage without maher”.
Thus, dower may, first of
all, be either specified or not specified. In the latter case it is called Mahr
al- mithl, proper dower, or to be strictly literal „the dower of the like‟. If the dower has
been specified, then the question may be whether it is prompt (mu
’ajjal) or
deferred (Muwajjal).
Thus we have two
kinds of dower in Islam-
(a) Specified
dower (al-mahr al musamma), and
(b)
Unspecified dower or proper dower (mahr
al- mithl).
Specified
dower may again be divided into
(c)
prompt (mu’ajjal) and (d) deferred (muwajjal).
In (a) and (b) the
question before the court is the amount payable; in (c) and
(d) the
question is the time when payable has to be made.
Regarded
as a consideration for the marriage, it is, in theory payable before
consummation but the law allows its division into two parts, one of which is
called
„prompt‟ payable before
the wife can be called upon to enter the conjugal domicile or demanded by
the
wife the other „deferred‟,
payable on the dissolution of the contract by the death of either of the
parties or by divorce. But the dower ranks as a debt and the widow is entitled
along with other creditors of her deceased husband, to have it satisfied on his
death out of his estate”. If the property of her deceased husband is in her
possession, she is entitled (as against other heirs of her husband and as
against other creditors or recover that property after they have paid up her
debt. Dower-debt is not a charge and widow cannot prevent another creditor or
of her husband from recovering his debt from his estate. Dower-debt is an
unsecured debt ranking equally with other debts.
In
the other word, “Prompt dower is payable on demand, and deferred dower is
payable on the dissolution of marriage by death or divorce. The prompt portion
of the dower may be realized by the wife at any time before or after
consummation, but the deferred dower could not be so demanded.
The Ithna
Ashari Shias divide mahr into three categories:
one, Mahr
i- Sunnat or the amounts of mahr the Prophet paid his wives,
said to be 500 dirhams; Maher-
i-Mithl, or customary dower; and Maher-i-Musama or the specified
dower. Under Shiah Ithna Ashari law as practiced in India when no mahr has
been stipulated at the time of marriage, and is to fixed by the operation of
the law, the amount is Maher- i- Sunnat or 500 dirhams mahr,
in the absence of specification, in not to exceed this amount, Ismailli
law follows a similar rule. There also exists an exceptional clause in the Shiah
Ithna Ashari law
in India that a woman “who is adult (baligh) and not of a weak or
facile disposition can, at the time of marriage, agree that there will be
no Maher. An
Ithna Ashari may
also, at the time of marriage, reserve (with the consent of the wife) an
option to cancel the maher.
Under
Fatimid Shiah law a woman may under certain circumstance give up her maher,
according to all other Schools mahr forms an inseparable ingredient of
the marriage contract and never be cancelled by the virtue of law.
So, the dower may
be classified in Sunni Schools into:
(a)
Specified Dower (Mahr-i-Mussamma)
(1)
Prompt dower; and
(b)
Unspecified (Proper) dower (Mahr-i-Misl)
(a)
Specified Dower
Usually the maker
is fixed at the time of marriage and the qazi performing the ceremony
enters the amount in the register; or else there may be a regular contract
called kabin-nama with
numerous conditions. The
sum may be fixed either at the time of marriage or latter, and a father‟s contract on
behalf of a minor son is binding on the minor.
If
the amount of dower is stated in the marriage contract, it is called the
specified dower. Dower may be settled by the parties to the marriage either
before the marriage or at the time of the marriage or even after the marriage.
If a marriage of a minor or lunatic boy is contracted by a guardian, such
guardian can fix the amount of dower. Dower fixed by the guardian is binding on
the minor boy and he cannot on attaining the age of puberty take the plea that
he was not party to it. Even after the marriage of such minor or lunatic boy,
the guardian can settle the amount of dower, provided that at the time of
settlement of dower, the boy is still minor or lunatic.
The
husband may settle any amount he likes by way of dower upon the wife, though it
may leave nothing to his heirs after payment of the amount. But he cannot in
any case settle less than ten dirhams (the money value of 10 dirhams
is between Rs. 3 and 4) according to Hanafi law and 3 dirhams according
to Muslim law.
Shia
law does not fix any minimum amount for dower. For those Muslim husbands who
are very poor and not in a position to pay even 10 dirhams to the wife
as dower, the Prophet
has directed them to
teach Quran to the wife in lieu of dower. At present there is no limit to the
maximum amount of dower. The minimum has now become obsolete.
As already stated,
specified dower is again subdivided into:
(a) Prompt
Dower (muajjal mahr)
(b)
Deferred Dower (muwajjal mahr).
(1)
Prompt Dower
It is
payable immediately after marriage on demand.
According
to Ameer Ali a wife can refuse to enter into conjugal domicile of
husband until the payment of the prompt dower.
The
following point must be noted regarding prompt dower:
10
1. Prompt dower is
payable immediately on the marriage taking place and it must be paid on demand,
unless delay is stipulated for agreed. It can be realized any time before or
after the marriage. The wife may refuse herself to her husband, until the
Prompt Dower is paid. If the wife is minor, her guardian may refuse to allow
her to be sent to the husband‟s
house till the payment of Prompt Dower. In such circumstances, the husband is
bound to maintain the wife, although she is residing apart from him.
2. Prompt
dower does not become deferred after consummation of marriage, and a wife has
absolute right to sue for recovery of prompt dower even after consummation.
After consummation, she cannot resist the conjugal rights of the husband if the
prompt dower has not been paid by him. Instead of refusing the decree the suit
for restitution of conjugal rights to which the husband is entitled, if
marriage is consummated, the Court may pass a decree conditional on payment of
dower.
3.
It is only on the payment
of prompt dower that the husband becomes entitled to enforce the conjugal
rights unless the marriage is already consummated. The right of restitution
arises only after the dower has been paid.
4.
As the prompt dower is payable
on demand, limitation begins to run on demand and refusal. The period of
limitation for this purpose is three years. If during the continuance of
marriage, the wife does not make any demand, the limitation begins to run only
from the date of the dissolution of marriage by death or divorce. Although
prompt dower, according to Muslim law, is payable immediately on demand, yet,
in a large majority of cases it is rarely demanded and is rarely paid; in
practice Muslim husband generally gives little though to the question of paying
dower to his wife save when there is domestic disagreement, or when the wife
presses for payment upon the
husband‟s embarking upon a
course of extravagance and indebtedness without making any provision for her.
Lapse of time since marriage raises no presumption in favour of the payment of
dower.
(2)
Deferred Dower
It is payable on
dissolution of marriage either by death or divorce.
According
to Ameer Ali generally in India dower is a penal sum with the object to
the compel husband to fulfill marriage contract in its entirety.
The following
points must be noted regarding deferred dower:
1.
Deferred dower is payable on dissolution of marriage by death or divorce. But
if there is any agreement as to the payment of deferred dower earlier than the
dissolution of marriage such an agreement would be valid and binding.The wife is not entitled to demand payment of deferred dower
(unless otherwise stipulated) but the husband can treat it as prompt and pay or
transfer the property in lieu of it. Such a transfer will not be void as a
fraudulent preference unless actual insolvency is involved.
2.
The widow may relinquish her dower at the
time of her husband‟s
funeral by the recital of a formula. Such a relinquishment must be a voluntary
act of the widow.
4. The
interest of the wife in the deferred dower is a vested and not a contingent
one. It is not liable to be displaced by the happening of any event, not
even on her own death and as such her heirs can claim the money if she dies.
Wife’s
Rights and Remedies on Non-Payment of Dower
Muslim
Law confers upon a wife (or widow) the following three rights to compel payment
of her dower:
(a) Refusal
to cohabit;
(b)
Right to dower as a debt; and
(c) Right
to retain her deceased husband‟s
property.
Refusal
to Cohabit
If
the marriage has not been consummated, the wife has a right to refuse to
cohabit with her husband so long as the prompt dower is not paid. In the case
of a wife who is a minor or an insane, her guardian has right to refuse to send
her to her husband‟s
house till payment of prompt dower. During her such a stay in her guardian‟s house the
husband is bound to maintain her.
Right
to Dower as a Debt
Their
Lordships of the Privy Council held that “the dower ranks as a debt and widow
is entitled along with other creditors to have it satisfied on the death of the
husband, out of his estate”. If the husband is alive, the wife can recover the
dower debt by instituting a suit against him. After the death of the husband,
dower debt remaining unpaid, the widow can enforce her claim for the dower debt
by filing a suit against his heirs. The heirs of the deceased husband are
however, not personally liable for the dower debt. They are liable to the
extent to which and in the proportion in which they inherit the property of the
deceased husband. If the widow is in procession of her husband‟s property under a
claim for her dower, the other heirs of her husband are severally entitled to
recover their respective share upon payment of a quota of the dower debt
proportionate to those shares.
A
Mohammdan dies leaving a widow, a son and two daughters. The widow is entitled
to a dower debt of Rs. 3200; the widow‟s share is the estate is 1/8 and she
is liable to contribute 1/8 of Rs. 3200 = Rs. 400. The son‟s share is 7/16
and he is liable to 7/16 of Rs. 3200 = Rs. 1400. The share of each daughter is
7/32 and she is liable to pay 7/32 of Rs. 3200 = Rs. 700 and if the window is
in possession to recover her share on payment of Rs. 700. She is not, however,
entitled to any charge on her husband‟s property, though such a charge may
be created by agreement.145 Even a father‟s contract on
behalf of his minor son is binding upon the minor and upon the father if the
minor fails to pay.
Difference Between
Sunni and Shia Laws Relating to Dower
|
Sunni Law
|
Shia Law
|
|
|
|
|
A minimum
limit of 10
dirhams is
|
No minimum limit
is prescribed.
|
|
prescribed for
specified dower.
|
|
|
|
|
|
There is no
limit to proper dower.
|
Proper dower
cannot exceed 500 dirhams.
|
|
|
|
|
There is no
maximum limit for specific
|
Fixing of dower
exceeding 500 dirhams
|
|
dower.
|
is considered
abominable though not illegal.
|
|
|
|
|
If the marriage
is dissolved by death and
|
In such case no
dower would be due if the
|
|
dower has
not been specified,
or it is
|
marriage was not
consummated.
|
|
agreed that no dower shall
be payable, proper
dower
would be due
whether the marriage was
consummated or
not.
|
|
|
|
|
|
An agreement
that no dower shall be due
|
Such agreement
by sane and adult wife is
|
|
is void.
|
valid.
|
|
|
|
|
In the absence
of an agreement only a
|
The whole
dower is presumed
to be
|
|
reasonable part
of the dower is presumed
|
prompt.
|
|
to be prompt.
|
|
|
|
|
The Muslim Women (Protection of Rights on
Divorce) Act, 1986 , has provision on Mahr as follows.
Section 3. Mahr or other properties of
Muslim woman to be given to her at the time of divorce.—
(1)
Notwithstanding anything
contained in any other law for the time being in force, a divorced woman shall
be 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)
where she herself
maintains the children born to her before or after her divorce, 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;
(c)
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; and
(d)
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.
(2)
Where a reasonable and
fair provision and maintenance or the amount of mahr or dower due has not been
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
authorised 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.
(3)
Where an application has been made under
sub-section (2) by a divorced
woman, the
Magistrate may, if he is satisfied that—
(a)
her husband having
sufficient means, has failed or neglected to make or pay her within the iddat
period a reasonable and fair provision and maintenance for her and the
children; or
(b)
the amount equal to the
sum of mahr or dower has not been paid or that the properties referred to in
clause (d) of sub-section (1) have not been delivered to her. make an order,
within one month of the date of the filing of the application, directing her
former husband to pay such reasonable
and fair provision and
maintenance to the divorced woman as he may determine as 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 her former husband or, as the case may be,
for the payment of such mahr or dower or the delivery of such properties
referred to in clause
(d) of sub-section (1) to
the divorced woman: Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may, for reasons to be
recorded by him, dispose of the application after the said period.
(4)
If any person against
whom an order has been made under sub-section (3) fails without sufficient
cause to comply with the order, the Magistrate may issue a warrant for levying
the amount of maintenance or mahr or dower due in the manner provided for levying
fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence
such person, for the whole or part of any amount remaining unpaid after the
execution of the warrant, to imprisonment for a term which may extend to one
year or until payment if sooner made, subject to such person being heard in
defence and the said sentence being imposed according to the provisions of the
said Code.
The Muslim
Women (Protection of
Rights on Divorce)
Act, 1986 , has
provision
on maintenance as follows.
4. Order for payment of
maintenance.—
(1)
Notwithstanding anything
contained in the foregoing provisions of this Act 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 such
reasonable and fair maintenance to her as he may 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 such periods as he may specify in his order:
Provided that where such
divorced woman has children, the Magistrate shall order only such children to
pay maintenance to her, and in 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: Provided further that if any of the parents is
unable to pay his or her share of the maintenance ordered by the Magistrate on
the ground of his or her 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 ordered by him be paid by such of the other
relatives as may appear to the Magistrate to have the means of paying the same
in such proportions as the Magistrate may think fit to order.
(2)
Where a divorced woman is
unable to maintain herself and she has no relative as mentioned in sub-section
(1) 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 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
sub-section (1), the Magistrate may, by order direct the State Wakf Board
established under section 9 of the Wakf Act, 1954 (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 him 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.
Concept
of Maintenance and General Meaning of the Term:-
The
term maintenance includes all necessities for subsistence of life. The general
meaning of the term can be well understood by referring to the definition given
under Hindu law, since muslim law doesn‟t per se define
the term, and hence, this reference shall be useful.16
The term as defined in Hindu Law means:-
16
Aioshwarya Anand, “Maintenance for Muslim Women in India”
International
Journal of Advanced Research (2016), Volume 4, Issue 5, 1503-1510
“in all cases, provisions
for food, clothing, residence, education and medical attendance and treatment;
in the case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage.”17
As
indicated by Halsburys law of England, maintenance is "the name given to
the week by week or regularly scheduled installments which may be requested on
a declaration of separation, or nullity to be made for the upkeep and backing
of the wife amid the joint lives of the life partners. Hence, it is a comparative
procurement for their profit, which may be made in processes of judicial
separation, nullity, divorce and restitution of conjugal rights”
Meaning
of the Term under Muslim Law:-
Under traditional Sharia law, the law
regarding maintenance was a little unclear, since there was no demarcation
between a legal obligation or a moral or ethical duty under Muslim law, hence
making it difficult to ascertain as to what is a person legally bound to do and
what is a mere moral duty. Under Quranic Law, a husband is obliged to provide
maintenance to his wife and family, and the term signifies the amount he is
liable to pay for the same.18
The term used for maintenance under Muslim
Law is called nafaqa and it comprehends food, raiment and lodging, though in
common parlance it is limited to the first.19
The wife is entitled to maintenance from
husband, despite the fact that she has means to maintain herself. In addition
to this, the marriage contract may stipulate payment of special allowances by
the husband, and in presence of these, it becomes the obligation of the husband
to pay these to the wife. Such allowances are called kharch-e-pandan,guzara,
mewa khore, etc.
This
can be claimed as a right. However, this is subject to a few exceptions. These
are:-
1.
A wife cannot claim maintenance if she is
disobedient.
2.
A wife cannot claim
maintenance if she does not allow free access to husband unconditionally
3.
A wife who deserts her husband is not
entitled to maintenance.
17Section
3 (c) Hindu Adoption & Maintenance Act, 1986
18 Khan
Ephroz , “ Women and Law : Muslim Personal Law Perspective”( Rawat Publications
, 2003) 302
19 Prof.
Ashok Wadje, “ Maintenance Right of Muslim Wife: Perspective, Issues & Need
for
Reformation”
National Law University, Jodhpur Law Journal
The husband‟s obligation to
maintain his wife is a personal liability, thus after his death, the wife is
not entitled to be maintained by his relatives nor out of his property.
We have
established that maintenance is the right of the wife. The following
circumstance give rise to such a right. These are:-
1.
Marriage.
2.
Divorce.
3.
Pre Nupital Agreement.
We may now move a step further to list the
sources from which these rights emanate. There are three major sources. These
are :-
1.
Muslim Personal Law.
2.
Section 125, CrPC.
3.
The Muslim Women (Protection of Rights on
Divorce) Act, 1986.
The present work shall focus on
Maintenance of Muslim Women Post Divorce. The major research area is the
conflict between CrPC and Muslim Personal law, and the position as settled by
the famous Shah Bano Case.
Maintenance
of Divorcees under Muslim Law:
Maintenance
under, CrPC- Before and After 1973:-
Initially,
it was provided in the CrPC(earlier under section 488) that only a wife is
entitled to maintenance by husband. It was claimed by the husbands that once
dissolution takes place, a woman ceases to be a wife and hence is not longer
entitled to maintenance. However, in Muslim law, taking a divorce is relatively
easier and hence, it led to situations where the same was being misused by the
husbands.
Looking at this loophole, an amendment was
made in 1973, wherein under section 125, a divorcee was entitled to maintenance
till the time she remarries. Being secular in nature, this provision applies to
all women, including Muslim women.
Conflict
of Muslim Personal Law with section 125 of CrPC:-
Under Muslim Personal Law, a woman is
entitled to maintenance only till the end of the Iddat period. Iddat is the
period when co-habitation of the parties end, on the expiry of iddat the
spouses will stand divorced. The period of iddat consists of three menstrual
cycles or three lunar months , in case of pregnant women , the iddat period
would extend up to the time of delivery.20
20 Khan
Ephroz , “ Women and Law : Muslim Personal Law Perspective” Rawat Publications
, 2003
18
Hence, we can see a direct conflict, since
CrPC does not recognize iddat period and maintenance goes beyond the same.
Secondly, in Muslim Law, polygamy is permitted, and under section 125, marriage
to another woman becomes aground for claiming maintenance. In Mohammed Haneefa
v. Mariam Bi,21
the Court stated that in case of a clash between personal law and CrPC, the
former shall prevail. This position was seconded by the Supreme Court in
SairaBano v A.M Abdul Gafoor.22
This caused a lot of dilemma in the legislature.
To resolve this dilemma, Section 127(3) was added under which that if a
divorced woman receives an amount due to customary or personal laws of the
community, the magistrate can cancel any order for maintenance in her favour.
Judicial
Decisions interpreting the Scope of Section 127:-
However, since the judiciary favoured the
right of women to claim maintenance, the conflict continued. It was held in Bai
Tahira vs Ali Hussain Fissalli Chothia23
that payment of "illusory sums" focused around the Muslim personal
laws ought to be considered to diminish the measure of maintenance payable by
the spouse, however that does not acquit the spouse from the commitment in
light of the fact that each lady independent of her religion is entitled to
maintenance. The divorced wife has this right except from when the aggregate
payment stipulated by custom is pretty much sufficient to substitute the
maintenance .Thus the spirit behind Section 127(3)(b) is that a wife can't
profit from both , unless the whole sum paid under the customary law is
deficient. An extra requirement was included by the Apex court in Fuzlunbi v. K
Khader Vali.24
The instalment of the sum focused around
Muslim law must be pretty much identical to the month by month maintenance to
the divorcee, required till her remarriage or demise, with a specific end goal
to substitute the maintenance recompense commitment. The Supreme Court
expressed in Zohara Khatoon vs Mohd. Ibrahim25
that the expression "wife" in S.125 and S.127of CrPC incorporates
Muslim ladies who get separated by method for Talaq or under the Dissolution of
Muslim Marriage Act,1939.
21AIR
1969 Mad 414
22 AIR
1987 SC 1103
23 1979
AIR SC 362
24 AIR
1980 SC 1730
25 1981
AIR SC 1243
It
was in this context of growing conflict and dissatisfaction that the famous
Shah Bano Case surfaced and went onto become the most landmark judgment in this
subject matter.
Mohd
Ahmad Khan v. Shah Bano Begum or the Shah Bano Case:-26
Facts
of the Case briefly stated:-
Shah
Bano Begum married Mohammad Ahmed Khan in 1932. They produced three sons and
two daughters. Mr. Khan took another wife, legally according to Islamic law,
with whom he produced additional children. The entire extended family shared a
home, from which Mr. Khan expelled Shah Bano in 1975, forcing her to take
refuge with one of her adult sons. Shah Bano received maintenance from her
husband for two years, after which he claimed he had fulfilled his obligations
under Islamic law because according to the fundamentalist interpretation of the
Shariat, “the Muslim husband enjoys the privilege of being able to discard his
wife whenever he chooses to do so.”
In the present case, a 62 year old woman
was divorced and subsequently denied maintenance. She had not remarried. On
moving the court of the Judicial Magistrate at Indore under section 125 of the
CrPC, and claiming maintenance of Rs 500 per month, she was awarded a
maintenance of Rs 25 per month from the husband.
Aggrieved
by the lowamount,
she filed a revision petition before
the
Madhya Pradesh High Court, which entitled her to a maintenance of Rs 179.20 per
month. The husband appealed against this order before the Supreme Court, his
main contention being that since the dissolution had taken place, she ceased to
be his wife and under Muslim law, he was not obliged to pay her maintenance.
Also, since he had paid the dower amount during the Iddat period, the wife was
not entitled to any maintenance. Muslim bodies like All India Muslim Personal
Law Board and Jamiat Ulema-e-Hind joined the case as interveners.
The case was decided by a a five judge
bench composed of chief justice Chandrachud, Jangnath Misra, D A Desai,O.
Chinnappa Reddy, and E S Venkataramiah.
26 AIR
1985 SC 945
The Supreme Court dismissed the appeal and
upheld the decision of the High Court. The Supreme Court held that if the wife
is equipped to maintain herself then the spouse's commitments would stop post
iddat. However in the event that she can't do so, a recourse under section 125
is available and, hence, the appellant had to pay. The Supreme Court stated
that if the Holy Quran is correctly interpreted, then it can be inferred that
there is not conflict between section 125 of the CrPC and Muslim Personal Law at
all, since even under Islamic Law, the husband is obliged to pay maintenance to
the divorced wife. The Supreme Court explained this judgment by saying that,
even if there is a conflict, section 125 of CrPC is a secular law, and hence,
applies to all women, irrespective of their religion. It further stated that
CrPC shall prevail over Muslim Personal Law in case of a conflict. The court
held:-
“It
would be incorrect & unjust to extend the rule of maintenance under Muslim
Law to the cases in which the divorced wife is unable to maintain herself, so
if the divorced wife is able to maintain herself, the husband’s liability
ceases with the expiration of the 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 Cr. P.C.”
Hence, the Supreme Court settled the
position of law that in case a Muslim woman is divorced, incapable of
maintaining herself and has not remarried, then she shall be entitled to
maintenance under section 125 of the CrPC.
Reaction
to the Judgment:-
The judgment had a lot of political
repercussions and had to face a lot of criticism from the orthodox Muslim
Community. Different Civil Code altogether for Muslims was demanded and caused
a lot of controversy and heated debates.
The
main protestors were Obaidullah Khan Azmi and Syed kazi. They had formed an
organization in1973 known as the All India Muslim Personal Law Board devoted to
upholding what they saw as Muslim Personal Law, and thorough this organization,
they voiced their opinions against the judgment.
The Rajeev Gandhi government, coming under
preassure from Islamist groups decided to nullify the judgment, and in a effort
to do the same, it passed The Muslim Women (Protection Of Rights On Divorce)
Act, 1986.
This act became one of the most
controversial legislations enacted. The relevant provisions of this act are
sections 3(1)(a) and 4(1), which stated that the former husband must provide “a
reasonable and fair provision” and maintenance within the period of iddat and,
that in case she is unable to maintain herself after the period of iddat , she
can claim maintenance from her relatives and if they cannot pay , then she can
claim from the Wakf Board as per S.4(2), respectively. It doesn't characterize
a maximum limit to the maintenance. It expresses that women may look for fair
and reasonable remuneration amid the iddat, and that any kids borne of the
marriage are eligible for a further maintenance.
Reaction
to the Act and Controversies surrounding the same:-
The Act was seen as oppressive as it
denied divorce Muslim ladies the right to fundamental support which ladies of
different beliefs had recourse to under CrPC. Minority Rights Group
International, an NGO based in the U.K., denounced the law, commenting that it
“highlighted the disjunction between constitutional law premised on the
principle of sexual equality and religious
laws
which discriminate on the basis of this very category.”
The Constitutional validity of the Act was
challenged on the ground of being violative of Article 14, 15 and 21. The basic
question raised by right activists was the necessity of enacting an Act, which
completely segregates a portion of the population by having a special enactment
despite a secular remedy being available.
The Act was also
criticised for being arbitrary for two main reasons.
“Firstly,
the use of the word within implied that there was no provision in the Act which
could entitle a woman to maintenance post iddat period. Secondly, the Act
diminished the scope of Section 125 of the CrPC, since, by virtue of this Act,
the Muslim men were at the option of making the said section of CrPC
inapplicable to them.”
A state of confusion was prevalent among
the judiciary, since on the face of it, the Act seemed to be in fovour of
Muslim women, because of the use of words like fair, reasonable, provision etc.
However, the act didn‟t
provide for any circumstance in which the maintenance could exceed the iddat
period. The controversy was on its peak between Gujarat and
Andhra High Courts in the cases of Arab Bail and Fathimunnissa Begum .
Hence,
a situation of ambiguity prevailed, and the court started interpreting the Act,
as shall be discussed in the next section.
Position
Post Enactment of The Muslim Women (Protection Of Rights On Divorce) Act,1986-
Daniel Latifi v. Union of India27:-
As noted in the previous section, the Act
had created a lot of ambiguity, and the judiciary started interpreting the Act.
The Andhra Pradesh High Court took a strict view saying that the use of the
word with signifies that in no case can the maintenance exceed the iddat
period.On interpreting this, the Gujarat High Court, relying on the words fair
and reasonable, awarded a lump sum payment to the divorced wife as maintenance.
The position was finally settled by another landmark judgment in 2001, called
Daniel Latifi v. Union of India.
Daniel
Latifi v Union of India:-
In this case, a writ was filed under
Article 32 challenging the constitutional validity of the Act. The case was
heard by a bench consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra Babu, Mr. D.P.
Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil. In this case the
constitutional validity of the Act was upheld and an interpretation of the
provisions of the Act was provided. The Court looked into the Preamble,
Statement of Objectives and Reasons of the Act. Huge reliance was placed on the
judgment in the Shah Bano case as well. The court concluded that, one, the Act
does not violate Articles 14, 15 and 21 and hence, is not ultra vires. The
court stated that “the legislature does not want to enact unconstitutional
laws.”
The
court went on to interpret the Act, and the Supreme Court stated “that a
construction that results in making an Act ultra vires has to be discarded and
one that upholds the validity of the Act preferred”
The court made the
following interpretations.
Firstly, interpreting the meaning of the
term “within” used under section 3(1)(a) of the Act read with the terms terms
fair and reasonable, the court arrived at the conclusion that the maintenance,
being fair and reasonable, should exceed the iddat period but must be made
within the iddat period. Such maintenance made during iddat period should be
for her entire future, that is the time after the expiration of iddat period
well.
The liability of the husband, therefore, is not limited to the iddat period.
Therefore, this Act is not in contravention of section 125 of CrPC. The court
stated the following which comprehensively explains the position:-
“the word 'provision' indicates that
something is provided in advance for meeting some needs. In other words, at the
time of divorce the Muslim husband is required to contemplate the future needs
and make preparatory arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for her residence, her
food, her cloths, and other articles. The expression "within" should
be read as "during" or "for" and this cannot bedone because
words cannot be construed contrary to their meaning as the word
"within" would mean "on or before"," not beyond"
and, therefore, it was held that the Act would mean that on or before the
expiration of the iddat period, the husband is bound to make and pay a
maintenance to the wife and if he fails to do so then the wife is entitled
torecover it by filling an application before the Magistrate as provided in
Section 3(3) but nowhere the Parliament has provided that reasonable and fair
provision and maintenance is limited only for the iddat period and not beyond
it. It would extend to the whole life of the divorced wife unless she gets
married for a second time.”
The
above clarifies the position of law as settled by the case, quite
comprehensively.
It further stated that if
a woman doesn‟t
remarry she has the recourse under section 4 of the Act against her relatives
in proportion of the properties they shall inherit after her death. If the
relatives are not in a position to the, the judicial body can order the WAKF
Board to pay for the maintenance of the woman.
Effects
of Daniel Latifi Judgment:-
Daniel
Latifi judgment basically revived the principles settled in Shah Bano case
that, the husband‟s
liability to maintain his wife doesn‟t end with the iddat period.
However, it explained this principle, not
as contravening the Act which was enacted as a result of the Shah Bano case, as
a commentary on that Act. Also, the Act is consistent with section 125 of the
CrPC and hence, there is no scope for conflict. Hence, the position of law is
that, the provisions of the Act basically emanate from principles set forth in
the Shah Bano case. The same has not been changed till now, and continues to
govern matters related to maintenance of Muslim women after dissolution of marriage.
The principle has been seconded by the Supreme Court once again in Iqbal Bano V/s. State of U.P28
. In the case the court reiterated the position that divorced women are
entitled for maintenance beyond the Iddat period and stated that provisions of
the Act do not contravene Article 14, 15 & 21 of the Indian Constitution.
The court further observed that “right under Section 125 of Cr. P.C. extinguishes
only when she receives “fair or reasonable” settlement u/Sec. 3 of the Muslim
Women Act. The wife will be entitled to receive maintenance u/Sec. 125
ofCr.P.C. until the husband fulfills his obligation u/Sec. 3 of Muslim Women
(Protection of Rights on Divorce) Act,1986. This was once again reiterated in
the recent judgement in Shabana Bano v. Imran Khan29
that after the expiry of iddat, a divorced Muslim woman can seek maintenance
under S.125CrPc as long as she doesn‟t remarry. Hence, the position as laid
down in the Daniel Latifi case is the settled position and has not undergone
any change.
Conclusion:-
When
communal identity is defined by religious traditions, social transformation
that affects religion is seen as a threat to that identity, and thus evokes an
emotional response. Rather than remaining a question of Shah Bano‟s demand for
maintenance, the case became a battle to protect the Muslim identity from what
fundamentalists considered “the Hindu‟s homogenizing influence.” In
addition to the broader argument between right-wing Hindus and Muslim
fundamentalists, the Shah Bano case wrought divisions within the Muslim
community. Women‟s
groups like the NIWF (National Indian Women‟s Federation) and
AIDWA (All India Democratic Women‟s
Association) spoke out in favor of the judgment as a progressive step toward
equality for Muslim women.
Shah
Bano was not the first woman to go to the courts and demand maintenance based
upon the CrPC. Religion became a weapon both exploitative and divisive used to
dismantle India‟s
democracy.
It could be seen that under Muslim law,
maintenance post-divorce has been a controversial subject matter. Initially,
there were two sources from which the rights to maintenance of a divorced
Muslim woman emanate. These were section 125 of CrPC and the Muslim Personal
Law. There was a conflict between the two since, under CrPC,
the right of a woman to claim maintenance was beyond
the iddat period and under Muslim Personal Law, the husband was obliged to pay
maintenance only during iddat period. To resolve this, section 127 was inserted
in CrPC, but this was unsuccessful in resolving the conflict and being
asubstitute for maintenance. In this context, the famous Shah Bano Case was
decided, which settled the position of law. The case gave precedence to CrPC
over Muslim Personal Law, and stated that if the divorced woman does not have
the means to maintain herself, the it is the obligation of the husband to
maintain her for her entire lifetime, and hence, well beyond the iddat period.
The judgment caused a lot of unrest among traditional Islamic groups, which saw
this as an attack on their personal law. Coming under preassure, the Rajeev
Gandhi led government enacted the Muslim Women (Protection of Rights on
Divorce) Act, 1986. This act stated that the husband is obliged to provide fair
and reasonable maintenance within the iddat period. This led to a lot of
ambiguity and a sense of confusion prevailed over the interpretation of the
terms. This confusion was finally resolved by another landmark judgment, Daniel
Latifi v. Union of India. In this case, the Supreme Court upheld the constitutional
validity of the Act and stated that the same does not contravene Article15,15
and 21 of the Indian Constitution. Interpreting the terms, the Court said that
the husband is obliged to provide for maintenance of the divorced woman even
beyond iddat period, since the term fair and reasonable provision implied this.
The term within was construed to mean that such a maintenance should be made
within the iddat period. However, the obligation does not end with the Iddat
period. Therefore, the case is credited for serving dual purpose of maintaining
the constitutional validity of the Act and reiterating the position which was
settled in the Shah Bano Case. The position has been seconded by Court in
various instances and stands unchanged.
