..::Maintenanceof Muslim Wives in Sub-continent (Pakistan)

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A Brief Introduction of Islamic Law in Sub-continent

Islamic Law was established in the Indian Sub-continent as early as the thirteenth

century when it came under Muslim rule. During this period of time, Islamic Law

together with local customs was the law of the land. However the peak of the

application of Islamic law in India was in the reign of the ruler Aurangzeb (1658-

1707) when he ordered the collection of the Hanafi legal response into legal digest

Raihanah Abdullah is an Associate Professor at Department of Shariah and Law,

Academy of Islamic Studies, University of Malaya

which to be applied in the court. 1 This collection was well-known as the Fatawa

Alamgiri (taking after his name) or also Fatawa Hindiya (hereinafter the Fatawa).

Apart from this digest Aurangzeb’s court also consulted the Hanafi’s classical

manual namely al-Hidaya of al-Marghinani in their legal and administrative order.

Thus, the Fatawa and the Hidaya constituted the most important legal documents at

the time. They continued to serve as an important legal reference even in the period

of English rule, where both of them had been translated into English in order to

make the provision of Islamic Hanafi law applicable in India, available and at the

disposal of English magistrates.

When India came under British administration, in the eighteenth century nearly

every aspect of Islamic law in the Indian sub-continent was either gradually

modified or abolished. However, the personal matters of the local inhabitants,

Muslims and Hindus were still governed by their religious laws. It was a matter of

policy on the part of the British colonial government not to interfere with the local

customs and personal regimes, unless it was necessary to do so, on public interest.

This can be seen for example in the case of Robba Khanum v Khodad Boman Irani

and Rakeya Bibi v. Ani! Kumar Mukherji , where the personal law of the parties

was ignored by the court on the ground of justice, equity and good conscience..,

which in fact was the English rules and principles.

Thus, under Warren Hastings’s scheme, it was provided that Muslims were to be

governed by their laws in suits regarding inheritance, marriage and caste and other

religious usages and institutions. That is to say Islamic personal law was to be

applicable to the Muslim in India.

However, the administration of Islamic Personal law was no longer conducted by

Muslim but rather by the British or local officers who had been English law-trained.

Having no sufficient knowledge in Islamic Law, mistakes frequently occurred in

deciding cases involving Islamic principles.

The administration of Islamic personal law by the British officers led to the creation

of a unique system of law. This system was aptly termed Anglo-Muhammadan law

and is essentially different from traditional shari’ a law. 6 Although the basic feature

of Anglo-Muhammadan law is Islamic, the interpretation of it has coloured by

English legal doctrines and principles. The combination of both has thus, created a

peculiar system of Islamic Law which has never been accepted by traditional Islam.

Not surprisingly it has been maintained that Anglo-Muhammadan law and the

jurisprudence based on it, is the most successful and viable result of the symbiosis

of Islamic and English legal thought in British India.

Reform of Islamic Family law in India

The application of Islamic law in modem India is based upon the Muslim Personal

law (Shariat) Application Act of 1937. The name of this Act indicates that Islamic

law is applicable only in personal matters. In section 2 of the 1937 Act it is

explicitly provided that the law of the Shariah and not custom and usage will govern

all Muslims irrespective of their schools of law and castes. This provision includes

all personal matters such as marriage, dissolution of marriage, maintenance,

inheritance, gifts, trusts and waqf. 8

Contrary to its title, the 1937 Act cannot be regarded as a code of family law, since

the Act has no provisions whatsoever relating to the substance of family matters.

The Act is too brief and short to be considered as a code of family law when

compared to other codes of family law of other countries, especially Middle Eastern

countries. Among them are the Jordanian Law of Family Rights (1951), Syrian Law

of Personal Status (1953) and Tunisian Code of Status Personnel (1956). These

codes have been considered among the most complete and comprehensive family

codes in the Muslim world. For the substance of personal matters one is largely

referred to the traditional Islamic law, namely the Hidaya and the Fatawa and also

For example in the case Sibt Mohammad v. Mohammad Hamid, 1948 ALL 625

concerning the legitimacy of children; the Shah Bano case, AIR 1985 SC 945, pertaining

to the question of post – ‘idda maintenance from a former husband. For details of cases

and discussions see Kashi Prasad Saksena, (1972) “Need for a Code of Muslim Law” in

Islamic Law in Modern India, ed. T. Mahmood, Bombay: N.M. Tripathy Private, pp.

to the works of Islamic scholars whose works are considered to be authoritative in

the field, such as Abd al-Rahim’s principles of Islamic law and Mullah. Thus it

could be said that the Act of 1937 only serves as the legal basis for the application

of Islamic personal law in India, no more or less than that.

Nevertheless, because of the changing of the societies in India and pressure to

prevent some bad practices in family life, reform on some part of Islamic personal

law was unavoidable, At first the reform was made as the result of the promulgation

of the Indian Evidence Act 1872 was paramount intended for general purposes, has

affected the Islamic Personal law on the question of legitimacy of a child.

Following the Evidence Act 1872, more reform has been made and this time as the

result of the promulgation of other Acts but as a direct modification of the Islamic

traditional law. A number of acts concerning reform of Islamic Family Law have

been passed in subsequent years. The Child Marriage Restraint Act was passed in

1939. These Acts have substantially modified and to a certain extent abandoned

Islamic principles, especially Hanafi rules, pertaining to the question of child

marriage and marriage dissolution. The Child Marriage restraint Act 1929 for

example has abolished the unfettered right of a guardian of a minor to conclude a

marriage of his minor. The primary aim of this Act is to restrain and limit child

marriage but not to render any marriages entered into contravention of its provision

as void or avoidable. II Whereas the Dissolution of Muslim Marriage Act 1939 has

reformed the classical Hanafi law, firstly on the question of option of puberty where

a minor who has been forcibly married by her or his guardian, upon attaining the

age of puberty has the right to terminate their union. Secondly, a wife through this

Act has a right to terminate her marriage on the grounds spelled in section 2 of the

Act. Such grounds are for example desertion of the husband from his marital home,

failure to provide maintenance, husband’s imprisonment, failure to perform marital

obligation, certain severe or chronic mental defects and any cruelty or maltreatment.

These grounds to terminate a marriage were actually taken from the Maliki schools

of law which has been adopted in many Islamic Personal law codes of the Middle

Eastern countries. For this reason it has therefore been maintained that the 1939 Act

was only a reform of the Hanafi law of marriage dissolution not as reform to the

Islamic personal law as a whole. The 1939 Act, however, did not affect the arbitrary

power of a husband to divorce his wife through extra-judicial means that is talaq.

Apart form these Acts; there are other areas, which are considered as the most

momentous aspect of Islamic Family law, which have not been reformed yet. This

can be seen particularly on the question of polygamy and extra-judicial marriage

dissolution or ta/aq. No legislation has yet been enacted to reform these matters.

Thus, the traditional law of Islam in these matters is still applied in India. Ironically

this is contrary to Hindus who are prohibited by the law from contracting a

bigamous marriage. The traditional Hindu law which permits such marriage was

reformed by the Hindu Marriages Act 1955. The Act only permits a monogamous

UllIon. Islamic Family Law in India today is administered by the ordinary civil courts

which are manned by common-law trained judges. Since there is no unified

codification on Islamic Family law in India, no doubt that the door is open and has always been

open for the court to employ judicial interpretation of certain principles of law. The

courts in many instances are likely to fall into mistakes and often pass confused

decisions on Islamic family matters. Moreover, there is no system of Qadi’s

courts or at least a division of Muslim family law in the court system in Indian

judiciary. The Qadi’s courts were abolished during the British colonial rule even

though the Kazis Act 1880 is still applicable. But this Act is only for religious

functionaries who have no judicial force.  The Rights of Maintenance for Muslim Wives

In India, a Muslim wife may claim her right of maintenance through civil or

criminal proceedings. Under the former, proceedings under the Dissolution of

Muslim Marriages Act of 1939 provide that inter alia, a wife may bring suit for

dissolution of marriage by fasakh on account of husband’s failure to provide

maintenance during the subsisting marriage. Classical Hanafi rules are applicable

to the parties since no provision was provided in any legislation on the question.

Under the latter proceedings, section 488 of the Criminal Procedure Code 1898 is

regarded as a speedy remedy to wives who have been neglected by their husbands.

Thus, the question of maintenance in Indian court is largely procedural. Section 488

of the 1898 Code provides that

“Order for maintenance of wives and children:-

(1) If any person having sufficient mean neglects or refuse to maintain his

wife or his legitimate or illegitimate child unable to maintain itself, a

Magistrate of first class may, upon proof of such neglect or refusal,

order such person to make a monthly allowance for her maintenance of

his wife or such children, at such monthly rate, not exceeding five

hundred rupees in the whole, as such Magistrate thinks fit, and to pay

the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so

ordered from the date of the application for maintenance.

Section 488 of the Code establishes the right of wives and children to maintenance.

The wife in seeking relief under this section, has to show that she has a “just

ground” for refusing to live with her husband without forfeiting her right to

maintenance. In Mohammed Haneefa v. Mariam Bi, the court recognized the fact

that the husband having married another wife constituted a “just ground” and

therefore is in the line with the provision under section 488 of the 1898 Code.

It is thought that this provision contradicts the Muslim law of maintenance. Under

Islamic traditional law a wife who refuses to cohabit with her lawful husband

without any good reason shall forfeit her right to maintenance. Polygamy is not a

good reason for refusal to cohabit under Islamic law. In fact the court in another

case, Baddruddin v. Aisha Begum emphasized that the provision under section

488 of 1898 Code is a general law which applies to all Indians irrespective of their

religions and castes. Therefore it is not affected by any provision of the wife’s

personal law despite the Muslim Personal law (Shariat) Application Act 1937.

Although section 488 is a remedy for Muslim wives to claim maintenance, the

Muslim husband on the other hand could easily divorce his wife by way of talaq if

he refuses to provide maintenance.

However in regard of this provision of the 1898 Code, the court has no authority to

pass an order for maintenance in favour of a divorced wife during the period of

‘iddah. In fact, the Dissolution of Muslim Marriages Act, 1939 does not make any

provision concerning the wife’s right to claim maintenance after the dissolution of

marriage. Therefore, the court will apply the principle of nafaqah al ‘iddah.

However, this 1898 Code is no longer enforced in India. The Indian Criminal

Procedure Code 1973 repealed the Criminal Procedure Code 1898 which was

applied to all Indian irrespective of their religions and castes. The Indian Criminal

Procedure Code 1973 compared with the former 1898 Criminal Procedure Code

changed two basic aspects of a wife right to maintenance. Firstly, the words “wife

who is unable to maintain herself’ has been added into the Criminal Procedure

Code 1973. 19 That is to say only a wife who can prove her inability to maintain

herself financially is entitled to claim maintenance. This section applies to all

women either during subsistence of her marriage or after divorce. The 1898

Criminal Procedure Code provided that all wives whether unable to maintain

themselves or not were entitled to claim maintenance. In this sense the 1973 Code

seems contradict to the Islamic principle of a wife’s right to maintenance. Under

Islamic law, a wife is entitled to maintenance irrespective of her financial position.

However, if a Muslim wife who has sufficient means cannot claim her maintenance

from her husband under criminal proceeding but she can pursue her rights under her

personal law in the civil suit. The claim under the civil suit in many instances prove

to be unsuccessful to the wife, since the court had been favour the practice of

custom which to a large extent undermines the wife rights to her marital benefits.

In India custom has been given official recognition either through statute or court’s

decision. For example the Charter of the Punjab Laws Act (1872) section 5, which

states that all the inhabitants pertaining to their family law, shall be governed any

custom applicable, and if in the case of Muslim to their own religious law but not to

the contrary of this Act. In a case, a claim of inheritance by a Muslim woman to her

father ‘s estate was rejected by the court on the ground that the religious law was not

applicable over the prevalent custom which denies her right to inheritance to her

father’s estate. 20

Secondly, under the old Code, the wife was entitled to claim maintenance during

the subsistence of her marriage only, while the new Code provided relief for a

divorced Indian woman to claim maintenance as long as she does not remarry. In

other words, section 125 of the 1973 Code has specifically defined the word “wife”

to include a divorced wife. This means that a divorced wife is · entitled to

maintenance until her death or remarriage. This section is clearly contradict to the

classical Islamic rules on maintenance where the husband’s obligation to provide

maintenance ceased by the end of the ‘iddah period.

Later an additional provision under section 127 (3) (b), was inserted in the 1973

Code. This section provides that:

19 S. 488 (1) of Criminal Procedure Code 1898; S.I2S (1) (a) of Criminal Procedure Code

Alteration in allowances:-

(1) On proof of a change in the circumstances of any person, receiving,

under section 125 a monthly allowance, or ordered under the same

section to pay a monthly allowance to his wife, child, father or mother

as the case may be, the Magistrate may make such alteration in the

allowance as he thinks fit: Provided that if he increases the allowance,

the monthly rate of five hundred rupees in the whole shall not be

exceeded.

(2) … … .. .. Not necessary

(3) Where any order has been made under section 125 in favour of a

woman who has been divorced by, or has obtained a divorce from, her

husband, the Magistrate shall, ifhe is satisfied that:

(a) The woman has after the date of such divorce, remalTied,

cancel such order as from the date of her remalTiage.

(b) The woman has been divorced by her husband and that she has

received, whether before of after the date of the said order, the

whole of the sum which, under any customary or personal law

applicable to the parties, was payable on such divorce, cancel

such order.

The provlSlons have created some difficulties and confusion especially in

ascertaining the meaning of customary payment due on divorce. In the Bai Tahira

case,22 the court observed that every divorce wife, Muslim or non-Muslim is

entitled to the benefit of maintenance and allowance or any customary payment

provided under section 27(3)(b) of the 1973 Code. This would however have to be

sufficient for the wife’s livelihood. The judge in this case spoke of section 125 as a

benign provision enacted to help discarded divorced woman.

The effect of this section is that the husband is no longer liable to pay maintenance

beyond the ‘iddah period, if the wife has received the whole sum of the defelTed

mahr which is applicable under customary or personal law of the parties. The court

thus, will cancel any order which has been made under section 125 of the 1973

Code, when the wife has received the defelTed mahr, no matter how small the

amount is.

In the case of Shah Bano,24 the court held that mahr is not a customary payment due

on divorce. Mahr according to the court is a consideration for a marriage or a mark

of respect for the wife. Therefore, no amount which is payable in consideration of

the marriage can possibly be described as an amount payable for divorce. The effect

of this judgment was that section 127 (3) (b) was not applicable to the payment of

the deferred mahr in the case of divorce.

More interestingly, the court in concluding the judgment claimed that there was no

conflict between section 125 of the 1973 Code and the Islamic Personal law. The

court in deciding this statement based on two arguments. Firstly, the judges

believed that, the Islamic law textbooks were inadequate in dealing with the

question of a divorced wife who was unable to maintain herself. Thus, the court

puts liability upon Muslim husbands to provide maintenance to a divorced wife

even after the period of ‘iddah has elapsed. Secondly, the court referred to the

Quran in Surah al-Baqarah ayat 241-242 which the court viewed that the husband

was liable to maintain his divorced wife beyond her ‘iddah period. This means that

the court was trying to interpret the word mut ‘ah as maintenance whereas the

concept ofmut ‘ah and maintenance (nafaqah) are different according to Islamic law

principles.

This is no doubt that this judgment is quiet radical in modifying traditional Islamic

law. Moreover, the fact that the judges in this case were Hindus, the decision

provoked enormous anger to Muslims in India where they protest the judgment. In

the words of Menski, the cause celebre of Shah Bano opened another chapter in the

‘war’ between state law and Muslim sentiments of the sanctity of personal laws.

To reduce the feeling of enmity among Muslims towards the government, the

government promptly passed an Act which amended the above 1973 Act. The

Muslim Women (Protection of Rights on Divorce) Act of 1986 was passed to curb

this tension. This Act is the first codification of Muslim law in India after the

promulgation of the Dissolution of Muslim Marriages Act 1939. This Act is very

small piece of legislation which has only seven sections. The effect of this Act was

that all provisions on section 125 and 127 (3) (b) of 1973 Code are no longer

applicable to Muslim. The Muslims were taken out of the ambit of section 125 of

the 1973 Code and to place a liability on the divorced woman’s natal family or

children for her maintenance.

Section 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986

provides that, a divorced woman is entitled to “a reasonable and fair provision and

maintenance to be made and paid to her within the ‘iddah period by her former

husband”. The main effect of this section is to retain a divorced woman’s right to

nafaqah al- ‘iddah as well as mut ‘ah.

However, the above new Act has been challenged for its validity on the ground that

the Act violated provisions of the Indian constitution. The Constitution of India has

provided in various articles that equality is guaranteed before the law. All citizens

of India are guaranteed fundamental rights by Articles 12 to 25 . Under Articles 15,

the State shall not discriminate against any citizen for a Uniform Civil Code.

In the light of the above provision under the Indian Constitution, the 1986 Act is

claimed to be unconstitutional on the grounds that the 1986 Act violates these

various provisions in the Indian Constitution. Moreover the 1986 Act is claimed to

be discriminatory and unjust to Muslim women as a violation of Article 15 of the

Indian Constitution. In the words of Krishna Iyer, the 1984 Act is believed to be an

unjust legislation and ultra virus the Qur’an, the women’s basic rights, the law of

waif, the family integrity and the law of nations. 27

Despite the objections to the 1986 Act, the Act remains fully enforced. The Ali and

Aliyar28 cases were filed under section 3 (1) (a) of the 1986 Act. The court held that

the reasonable and fair provision and maintenance shall be made and paid within

the ‘iddah period. The court added that the 1986 Act was intended to protect a

divorced woman from destitution.

In the later case Arab Ahmad bin Abdullah v. Arab Dail Mahmuna and another, 29

the court held that the 1986 Act did not nullify and orders made under the Criminal

Procedure Code of 1973 since none of the provisions took away the vested rights

crystallized by court orders. Furthermore the 1986 Act did not supersede the

27 V.R.Krishna Iyer,(1987) The Muslim Women (Protection of rights on Divorce) Act,

Delhi: Eastern Book Company, p.11-2. Many writers have incoperated with this view

for example see Bhajan Kaur (1990) “Muslim Women (Protection of Rights on

Divorce) Act, 1986 – Does it really protect?” KLT, (1) pp. 69-74, see also Kusum,

(1980) “Maintenance of a divorced Muslim Wife: A Critique of the proposed Law”,

Journal of Indian Law Institute, vol. 22, No.3, pA3; Satish Chandra, (1986) “Muslim

women (Protection of Rights on Divorce) Bill, 1986 – A critical Appraisal”, Cr. L.J,

pp.33-6 and Lucy Carroll, (1986) “The Muslim Women (Protection of Rights on

Divorce) Act 1986: A Retrogressive Precedent of Constitutionality”, Journal of The

previous decision of the Shah Bano case. More significantly, the husband’s liability

to provide maintenance to a divorced wife is not confined to the period of ‘iddah

only. It can be concluded that, even judicial decision have nullified the effect of the

1986 Act compared to the 1973 Code.3o

Prof. Tahir Mahmood has claimed that the modem Indian provlSlons on

maintenance are much more favourable to women. He has talked about insurance

by divorce when a divorced wife is provided with permanent alimony after the

dissolution of her marriage. )

CONCLUSION

It is clear from the above discussion that even though legal reform particularly in

Islamic Family Law has taken place in India, no unified code of Islamic Family has

yet been codified. Thus, to a certain extent classical Hanafi law coloured by secular

or more correctly English law principles is applicable. The reason for this perhaps

rest upon the social and political history of India which is beyond the scope of this

article. But to mention some of these, the Muslim for all times has viewed the

government with suspicion especially in reforming certain sensitive institutions of

the Muslim minority, especially the Institutions of family law.

This is certainly the case of the law of Muslim maintenance where no substantive

codification has been made. Thus, the court has to rely upon the classical texts,

which are extremely alien and perplexing to a modem court. Because of this reason

and others the Indian government has tried to interfere by inserting certain

provisions relating to the wife’s maintenance into the 1973 Criminal Procedure

Code. It is rather curious that such a civil remedy has been made enforceable under

a criminal proceeding. This show how desperate, the authorities have tried to

overcome the problem. Even though the provisions of the above Act have been

repealed by the new Muslim women (Protection of Rights on Divorce) Act 1986,

the position of the wife’s maintenance is largely the same as it was before those

acts. The case law has shown us that the provision of the Act is not enough to deal

with the problem of maintenance.  For details of judicial decisions in different states see T. Mahmood, (1990) “Islamic

Family Law Latest Developments in India” in Islamic Family Law, ed. Chibli Mallat,

Thus, in conclusion it is suggested a comprehensive code of Islamic Family law

which is in line with Islamic law, but which appreciates the local condition of

Indian Muslim societies, should be promulgated. This is to avoid any conflicted of

judgment in the Indian courts and more important to aid the destitute and helpless

Muslim wives and divorced Muslim women.

By: Raihanah Abdullah

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