By Shahnaj Huda Mam

1. MUSINGS ONMUSINGS ON
MAINTENANCEMAINTENANCE
Dr. Shahnaz HudaDr. Shahnaz Huda
Professor of LawProfessor of Law
University of DhakaUniversity of Dhaka

2. Maintenance orMaintenance or NAFAQANAFAQA
Means and signifies food, raiment &Means and signifies food, raiment &
lodging (Mullah)lodging (Mullah)
Responsibility to pay maintenance arisesResponsibility to pay maintenance arises
out of relationship, marriage or propertyout of relationship, marriage or property

3. Muslim men are obliged toMuslim men are obliged to
maintainmaintain
Chaste wives...Chaste wives...
Sons until they have attained pubertySons until they have attained puberty
Daughters until their marriageDaughters until their marriage
A Muslim husband obligation to maintainA Muslim husband obligation to maintain
his wife is considered to be is mosthis wife is considered to be is most
important duty and a priority and the wifeimportant duty and a priority and the wife
is not obliged to contribute anythingis not obliged to contribute anything

4. PAST MAINTENANCE &PAST MAINTENANCE &
POST DIVORCE MAINTENANCEPOST DIVORCE MAINTENANCE
The Highest Court in Bangladesh held inThe Highest Court in Bangladesh held in
Jamila Khatoon vs. Rustom Ali [16 BLDJamila Khatoon vs. Rustom Ali [16 BLD
1996(AD) 61] that a wife is entitled to1996(AD) 61] that a wife is entitled to
pastpast maintenance even in the absence ofmaintenance even in the absence of
any specific agreementany specific agreement
Can claim such past maintenance for sixCan claim such past maintenance for six
years prior to the filing of the suit.years prior to the filing of the suit.

5. POST DIVORCEPOST DIVORCE
MAINTENANCEMAINTENANCE
It is now the settled law in Bangladesh thatIt is now the settled law in Bangladesh that
a divorced wife is entitled toa divorced wife is entitled to
maintenance from her ex-maintenance from her ex-
husband only for the period ofhusband only for the period of
iddat.
The issue of post divorce maintenance created
unprecedented controversy in both India and
Bangladesh and has been a subject of much
debate in the two countries.

6. In the Bangladeshi case of HefzurIn the Bangladeshi case of Hefzur
Rahman vs. Shamsun NaharRahman vs. Shamsun Nahar
BegumBegum
The High Court had held:The High Court had held:
““A person after divorcing his wife is bound toA person after divorcing his wife is bound to
maintain her on a reasonable scale beyondmaintain her on a reasonable scale beyond
the period ofthe period of iddatiddat for an indefinite period,for an indefinite period,
that is to say, till she loses the status of athat is to say, till she loses the status of a
divorcee by remarrying another person”divorcee by remarrying another person”
(47 DLR 1999 54)(47 DLR 1999 54)

7. The decision created an uproarThe decision created an uproar
and the Appellate Division reversed theand the Appellate Division reversed the
decision and held that a divorces was onlydecision and held that a divorces was only
entitled to maintenance until the period ofentitled to maintenance until the period of
iddat and not beyond that period.iddat and not beyond that period.
The Court interpreted the word mataa .......The Court interpreted the word mataa .......

8. In BangladeshIn Bangladesh
A wife, but not a divorced wife, can claimA wife, but not a divorced wife, can claim
maintenance under S.9 of the Muslimmaintenance under S.9 of the Muslim
Family Laws Ordinance....Family Laws Ordinance....
Earlier claims could be made under S. 488Earlier claims could be made under S. 488
of the Cr.P.C but after the coming intoof the Cr.P.C but after the coming into
force of the Family Courts Ordinanceforce of the Family Courts Ordinance
1985, the Criminal Courts jurisdiction has1985, the Criminal Courts jurisdiction has
been oustedbeen ousted [Pochon Rikksi Das vs. Khuku[Pochon Rikksi Das vs. Khuku
Rani Das & Others 50 DLR 1998] 47Rani Das & Others 50 DLR 1998] 47

9. Under The Dissolution ofUnder The Dissolution of
Muslim Marriages Act, 1939Muslim Marriages Act, 1939
Sec.2(ii)---non-payment of maintenanceSec.2(ii)---non-payment of maintenance
may be ground for divorcemay be ground for divorce

10. Maintenance Under Muslim LawMaintenance Under Muslim Law
in INDIAin INDIA
The Shah Bano controversy:The Shah Bano controversy:
Led to the enactment of a rare law onLed to the enactment of a rare law on
Muslims in IndiaMuslims in India
Sec. 125 of the Cr.P.C. (1973) of IndiaSec. 125 of the Cr.P.C. (1973) of India
deserted and destitute wives the right todeserted and destitute wives the right to
claim maintenance up to Rs.500claim maintenance up to Rs.500
Included divorced wives in the definition ofIncluded divorced wives in the definition of
wiveswives

11. Mohd. Amin Khan vs. ShahMohd. Amin Khan vs. Shah
Bano Begum (AIR S.C. 945)Bano Begum (AIR S.C. 945)
Married in 1932Married in 1932
Shah Bano driven out of the house inShah Bano driven out of the house in
19751975
She sues for maintenance under in AprilShe sues for maintenance under in April
1978 under Sec. 125 of the Cr.P.C. 19731978 under Sec. 125 of the Cr.P.C. 1973
He divorces her by pronouncement ofHe divorces her by pronouncement of

12. The lower Court grants Rs. 25 asThe lower Court grants Rs. 25 as
maintenance to Shah Bano---latermaintenance to Shah Bano---later
increased to Rs. 179.20 by High Courtincreased to Rs. 179.20 by High Court
Amin Ahmed appeals against the increaseAmin Ahmed appeals against the increase

13. groundsgrounds
He has already paid dower andHe has already paid dower and
maintenance for the period ofmaintenance for the period of iddatiddat
Her application should be dismissed underHer application should be dismissed under
S. 127(3) (b)..........S. 127(3) (b)..........

14. Supreme Court holdsSupreme Court holds
Provisions of Sec. 125 override personalProvisions of Sec. 125 override personal
lawlaw
Interpreted the provisions of the Quran reInterpreted the provisions of the Quran re
maintenance that it is not possible tomaintenance that it is not possible to
establish that a former husband does notestablish that a former husband does not
have to pay beyondhave to pay beyond iddatiddat to destitute wifeto destitute wife
Payment of dower cannot be regarded asPayment of dower cannot be regarded as
payment under Sec. 127 (3)(b)payment under Sec. 127 (3)(b)

15. Decision creates unprecedentedDecision creates unprecedented
chaoschaos
Indian Government forced to concede toIndian Government forced to concede to
pressure and enacts :pressure and enacts :
The Muslim Women (Protection ofThe Muslim Women (Protection of
Rights on Divorce) Act, 1986,Rights on Divorce) Act, 1986,
Section 3(1)(a) of which provides that aSection 3(1)(a) of which provides that a
divorced women is entitled to reasonabledivorced women is entitled to reasonable
and fair provision and maintenance withinand fair provision and maintenance within
thethe iddatiddat period onlyperiod only

16. The Constitutional validity of the Act wasThe Constitutional validity of the Act was
challenged on the ground that it violates ofchallenged on the ground that it violates of
Article 14, 15 and 21 of the IC.Article 14, 15 and 21 of the IC.
The necessity of an Act which segregatesThe necessity of an Act which segregates
Muslim women when a secular remedyMuslim women when a secular remedy
was already available under Section 125was already available under Section 125
of the Code of Criminal Procedureof the Code of Criminal Procedure
questioned.questioned.

17. The expression “provision andThe expression “provision and
maintenance” contained in the 1986 Actmaintenance” contained in the 1986 Act
created confusion . The High Courts ofcreated confusion . The High Courts of
Kerala, Bombay and Gujarat opined thatKerala, Bombay and Gujarat opined that
the expression reasonable and fairthe expression reasonable and fair
provision meant arrangement for a lumpprovision meant arrangement for a lump
sum amount for the future provision of thesum amount for the future provision of the
wife within the iddat period other than thewife within the iddat period other than the
iddat period maintenance. But contraryiddat period maintenance. But contrary
opinions were given by other High Courts.opinions were given by other High Courts.

18. Confusion laid to rest by the case ofConfusion laid to rest by the case of
Daniel Latifi vs. Union of IndiaDaniel Latifi vs. Union of India
Supreme Court heldSupreme Court held that:that:
reasonable and fair provisionsreasonable and fair provisions
include provision for the future ofinclude provision for the future of
the divorced wife (includingthe divorced wife (including
maintenance) which must be paidmaintenance) which must be paid
within the period ofwithin the period of IddatIddat

19. MAINTENANCE UNDERMAINTENANCE UNDER
HINDU LAWHINDU LAW
Bangladesh---The Hindu MarriedBangladesh---The Hindu Married
Women’s Right to Separate ResidenceWomen’s Right to Separate Residence
and Maintenance Act, 1946and Maintenance Act, 1946
Can go to Family Court under the Ord. OfCan go to Family Court under the Ord. Of
19851985
Same in PakistanSame in Pakistan

20. Maintenance—Hindu Law--IndiaMaintenance—Hindu Law--India
Under the Hindu Adoption andUnder the Hindu Adoption and
Maintenance Act, 1956---maintenanceMaintenance Act, 1956---maintenance
during marriage—under Sec. 18 wife canduring marriage—under Sec. 18 wife can
claim maintenanceclaim maintenance
Under the Hindu Marriage Act, 1955—Under the Hindu Marriage Act, 1955—
both husband and wife can claim ---interimboth husband and wife can claim ---interim
maintenance or maintenance duringmaintenance or maintenance during
pendency of suit (Sec.24)pendency of suit (Sec.24)

21. Permanent Maintenance—Permanent Maintenance—
Hindu lawHindu law
Under Sec. 25 of 1955 Act in a decree forUnder Sec. 25 of 1955 Act in a decree for
divorce etc.divorce etc.
Either party may applyEither party may apply
Order to pay gross or monthly or onOrder to pay gross or monthly or on
periodical basisperiodical basis
Not beyond lifetime of respondentNot beyond lifetime of respondent
Order may be rescinded, modifiedOrder may be rescinded, modified
depending on circumstancesdepending on circumstances

22. Alimony under Christian LawAlimony under Christian Law
The Divorce Act 1869The Divorce Act 1869
Applies in all three countries:Applies in all three countries:
Modified in IndiaModified in India
Under Section 36 &37 provision forUnder Section 36 &37 provision for
alimonyalimony pendente litependente lite and PERMANENTand PERMANENT
ALIMONYALIMONY

24. Laws regardingLaws regarding
maintenance---maintenance---
paternalism or positivepaternalism or positive
discrimination????discrimination????