Introduction According to theMahomedan law, marriage is not a sacrament but a civil contract.
Although, all the rights and obligations itcreates arise immediately, the payment of dower by husband to a wife does notdependent on any condition precedent. The Rajasthan High Court has made a clear observationin the instant case that unlike a Hindu Marriage, which is a sacrament,according to the Islamic Law, a marriage i.e. Nikah is a permanent and anunconditional civil contract made between two persons of opposite sexes with aview to mutual enjoyment and procreation and legalizing of children.
The payment of dower (mehr) is one of theessential features of valid marriage. After the period of iddat, the right to maintenance comes to be consideredunder sec. 125 to 127 of Code of Criminal Procedure. The division bench of Kerala High Court gotan opportunity to discuss the meaning of ‘reasonable and fair provision’ andits distribution with maintenance.
Thecourt observed that the legislature has deliberately used the two expressions’provision’ and ‘maintenance’ with the intention of expressing two differentthings or ideals departing from the view expressed by the Supreme Court in ShahBano case. Parliament while enacting s.3(1)(a) of the Act, accepted the traditional view that right to maintenanceceases after the expiration of the iddat.Factsof the case (Mohammad Ahmed Khan vs. Shah Bano Begun & Ors) Shah Bano, a 62 year old Muslim women andmother of five from Indore, Madhya Pradesh, was divorced by her husband(petitioner) in 1978. Where in life tookan ugly turn when her husband divorced her for dowry. Shah Bano was sent back to her parent’s home,who had no means to support herself and her children, unable to support herselfand her five children, she moved to the courts to be granted maintenance fromher ex-husband. She filed a petition for maintenance under sec.
125 of the Cr.P.C,according to which the former husband of the divorced woman has to maintainher, if she is destitute and has no means of her own for her survival and hehas to maintain her until she remarries or she dies. However, Shah Bano’s husband refused to payher maintenance beyond the period of iddah or iddat.
Maintenanceof wife If the husband divorces his wife or thewife obtains a divorce from her husband , then she is entitled to claimmaintenance from her ex-husband, provided, she is unable to maintain herself and thehusband has neglected to maintain her. Herright to claim maintenance would come to an end only if she remarries or livesin adultery or if she voluntarily surrenders her right to maintenance. Hence, the consideration of the previousconduct of the divorced wife is wholly irrelevant in a under s.125 of the Cr.
P.C. It was contended that the wifehad agreed to relinquish her right to maintenance allowance and therefore, shewas not entitled to claim maintenance allowance in view of the provisionsof s.
127 (3)(c), but no settlement ofclaim which does not have special statutory right of the divorce under s.125can operate to mitigate that claim. Where an order is made for themaintenance of a wife under s.488 of Cr.
P.C and the wife is afterwardsdivorced, the order ceases to operate on the expiration of the period ofiddat. The result is that a Mahomedanmay defeat an order made against him under s.488 by divorcing his wifeimmediately after the order is made. Hisobligation to maintain his wife will cease in that case on the completion ofher iddat.
A divorced wife is entitledto claim or sue for her dower, maintenance or return of her jewels and clothes. Section125 of Cr.P.C- order for maintenance of wives, children and parents, which applies to allcitizens regardless of cast or religion.(1) If any person leaving sufficient meansneglects or refuses to maintain-(a) hiswife, unable to maintain herself, or(b)hislegitimate or illegitimate minor child, whether married or not, unable tomaintain itself, or(c) hislegitimate or illegitimate child (not being a married daughter) who hasattained majority, where such child is, by reason of any physical or mentalabnormality or injury unable to maintain itself, or(d)hisfather or mother, unable to maintain himself or herself.Agreementfor future maintenance An ante-nuptial agreement between a Mahomedanand his prospective wife, entered into with the object of securing the wifeagainst ill-treatment and of ensuring her suitable maintenance in the event ofill-treatment, is not void as being against public policy.
Similarly, an agreement between a Mahomedanand his first wife, made after his marriage with a second wife, providing forcertain maintenance for her if she could not in future get on with the secondwife, is not void on the ground of public policy. Similarly, an agreement by a Mahomedan withhis second wife that he could allow her to live in her parent’s house and payher maintenance is not against public policy. It has been held in Bombay that an agreement for future separationbetween husband and wife is void as being against public policy under theIndian Contract Act, 1872, s.23. Anagreement, therefore, which provides for certain maintenance to be given to thewife in the event of a future separation between them, is also void.
If the marriage is dissolved by divorce, thewife is entitled to maintenance for the period mentioned in s. 279 and not forlife, unless he agreement provides that it is for life.
