Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Project Submitted as a partial fulfillment for the curriculum requirement of Family Law
SUBMITTED TO:
SUBMITTED BY: Srinjoy Bhattacharya Reg. No. 11B149 3rd year, BSW LLB. (Hons.) Gujarat National Law University
Acknowledgement..3 List of Cases...6 Object of Study, Scope and Focus of the study and the Methodology..8 Hypothesis......9 Introduction..10 Evolution..10 Provision...12 Constitutional validity..21 Test of Hypothesis and Conclusion .23 Bibliography.25
Page 2
ACKNOWLEDGEMENT
At the outset, I would like to thank Advocate Probal Mukherjee ,Advocate at the Calcutta High Court, who first showed me the role of law in families and the delicate task of saving families instead of tearing them apart. I would also like to thank Mr. Sushil Goswami, our family law faculty, who built on this interest and has given me the opportunity to delve deep into the various laws affecting families in India today. Lastly, I would also like my parents for their uncompromised support to the cause of my education.
Page 3
LIST OF CASES
Abdool Futteh v Zabunnessa, (1881) 6 Cal 631 Abdul Gafor Kunju v. Pathumma Bevi, (1989) 1 KLT 337 Abdul Latif Mondal v. Anuwara Khatun, 2002 (1) CLJ 186 Ajaib Kaur v. Uttam Singh AIR 1960 Punj 117 Ali v Sufaira, (1988) 3 Crimes 147 Ameer Amanulla v Mariam Beebi, 1985 MLJ (Cr) 164 Arab A Abdulla v Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj 141 Arab Ahmadia v. Arab Bail, AIR 1988 Guj 141 Badri Prasad v. Urmilla Mahobiya 2001 (4) Civil LJ 360 Badruddin v Aisha Begum, 1957 All LJ 300 Bai Fatma v Ali Mahomed Aiyeb, (1912) 37 Bom 280 Bai Tahira v Ali Hussain Fissalli AIR 1979 SC 446 Bammadevara v. Bammadevan (1928) 55 MLJ 242,
Page 4
Page 7
METHODOLOGY
Doctrinal Approach has been used in this project to accomplish the said objectives. A Descriptive method is also used in completion of this project. Books, Journals, Articles and World Wide Web are the tools used for the study.
HYPOTHESIS
The study on this topic is carried out by me to ascertain the position of maintenance of wives of the two biggest population group in our country and how it intermingles and is affected by the secular provisions for maintenance. This study is not a comparative view of the three laws but merely a statement on all three and a view on how they intermingle and affect one and another.
Page 8
The Qur'an
It is believed by the Muslims that the Qur'an is the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. Therefore, it is imperative that all sources of Islamic law be in essential agreement with the Qur'an, the most fundamental source of Islamic knowledge. When the Qur'an itself does not speak directly or in detail about a certain subject, Muslims then turn to alternative sources of Islamic law. It is a norm/practice to consult the alternative sources of law, when a certain subject is unspoken of, in the Quran.
The Sunnah
Sunnah is the set of traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to -- and he lived his life according to the Qur'an, putting the Qur'an into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and demeanour -i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Qur'an.
Ijma' (consensus)
In situations when Muslims have not been able to find a specific legal ruling in the Qur'an or Sunnah, the consensus of the community is sought (or at least the consensus of the legal
Page 9
Qiyas (analogy)
In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle has been applied to new situations.
Page 10
The Provision of maintenance has been laid down in the Quran, the ultimate authority in Islamic law in the following way: And treat not the Verses (Laws) of Allaah as a jest [al-Baqarah 2:231] It is incumbent on a husband to maintain his wife, whether she be a Muslim or kitabiyyah, poor or rich, enjoyed or uninjured, young or old. However if the wife is too young for matrimonial intercourse, she has no right to maintenance from her husband whether she is living in his house or with her parents.1 O Prophet! When you divorce women, divorce them at their Iddah (prescribed periods) and count (accurately) their Iddah (periods). And fear Allaah your Lord (O Muslims). And turn them not out of their (husband's) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. And those are the set limits of Allaah. And whosoever transgresses the set limits of Allaah, then indeed he has wronged himself. You (the one who divorces his wife) know not it may be that Allaah will afterward bring some new thing to pass (i.e. to return her back to you if that was the first or second divorce) [al-Talaaq 65:1] This broad and wide obligation is restricted only in cases where she is not obedient and does not allow the husband free access at all lawful times. If the husband has not paid the prompt part of dower or she refuses to live with her husband because of his cruelty the husband is bound to maintain her. It was held by the Allahabad High Court in Badruddin v Aisha 2 that where husband has married a second wife or keeps a mistress, the wife may refuse to live with the husband and still claim maintenance from him. O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no Iddah [prescribed period following divorce] have
1 2
Baillie, Niel B.E, Digest of Moohummudan law , part First (Hanafi Law) 2nd edn. London 1875, p. 437 1957 All LJ 300
Page 11
3 4
Page 12
Maintenance by agreement
The husband and wife or their guardians may enter into an agreement whereby the wife is entitled to recover maintenance from her husband on the happening of some specific event such as ill treatment or disagreements or husbands second marriage, etc. but any agreement in a marriage which stipulates the non-entitlement of the wife to maintenance shall be void. Here the key consideration is that the agreement should not be opposed to public policy and Muslim law.
Page 13
(1921) 43 All 650 (1912) 37 Bom 280 9 (1928) 3 Luck 603 10 Ibid
Page 14
11
http://jurisonline.in/2008/03/law-of-maintenance-in-india/
Page 15
Muslim
Women
(Protection
of
rights
on
12
Page 16
13 14
(1989) 1 KLT 337 Usman Khan Bahamani v Fathimunnisa Begum, 1990 Cri. LJ 1364 AP HC 15 Ali v Sufaira, (1988) 3 Crimes 147 16 Rafiq v. Farida BI 2000 (2) MPWN 77 MP, Julekha v. M.Fazal 2000 (1) Vidhi Bhaswar 123 MP 17 Hasenura Begum v Fazar Ali, (2001) 3 Gau Law Reports 576 18 1992 Cri LJ 147
Page 17
19 20
2000(1) CLJ 608 2000 (3) Mh LJ 555 21 (1997) 1 BLJR 93 22 1999 (1) KLT 796 23 Ibid 24 (2001) 7 SCC 740 25 Infra note 36
Page 18
Bai Tahira v Ali Hussain Fissalli AIR 1979 SC 446 1957 All LJ 300 28 (1957) 1 All 255 29 AIR 1947 Mad 461 30 AIR 1947 Mad 642 SUPRA 31 Mulla, Principles of Hindu Law, Volume II, 19th Edition, Lexis Nexis Butterworths, New Delhi, 2006, p. 301
Page 19
Page 20
32 33
Supra note 26 Supra note 26 34 AIR 1980 SC 1730 35 Ibid, paras 19(2) to (4)
Page 21
The reasoning of why mahr was excluded by the courts under the gambit of Section 127 was stated in Mohd. Ahmad Khan v Shah Bano Begum36 (herein after refered to as Shah Bano case): If mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves marriage. The alternative premise that mahr is an obligation imposed upon the husband as a mark of respect for the wife is wholly detrimental to the stance that it is an amount payable to the wife on divorce. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce37 The decision of the Supreme Court in this case went against the writings of many literary writers as cited by the counsels, the Supreme Court stated that: These statements in the text-books are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. [t]hese provisions of MPL (Muslim Personal Law) do not countenance cases in which the wife is unable to maintain herself after the divorce We are of the opinion that the application of these statements of laws must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife Section 125 deals with cases in which a person who is possessed of sufficient means neglects or reuses to maintain, amongst others, his wife who is unable to maintain herself. 38 The Madras High Court in Ameer Amanulla v Mariam Beebi39 rejected the plea of repugnancy between Section 125 and Muslim Personal Law and stated:
36 37
AIR 1985 SC 945 Ibid, Para 24 38 Ibid at 565-566 39 1985 MLJ (Cr) 164
Page 22
40 41
1976 MLJ (Cr) 405 AIR 1978 Ker 231 (FB) 42 1985 MLJ (Cr) 164
Page 23
Does the MW Act 1986 substitute S.125 CrPC so far as the Muslim Women are concerned?
S. 45 of the MW Act gives the divorced Muslim woman and her former husband an option to declare that they jointly or separately would prefer to be governed by the provisions of Ss. 125128 CrPC the Magistrate shall dispose of the maintenance accordingly (i.e. according to S. 125 etc. CrPC). The Andhra Pradesh HC in Usman Khan Bahamani v. Fathimunnisa Begum43 had held that after passing of the Act a divorced wife cannot claim maintenance under S. 125; these (125-128) sections are not applicable after coming into force of the Act. The same was the view of the Madhya Pradesh HC44 and Patna HC45. The Punjab and Haryana HC have also denied her recourse to the CrPC after the Act, but held that the Act did not divest the party vested with determined rights and benefits under S. 125.46 The Gujarat HC in Arab Ahmadia v. Arab Bail
47
that the Act did not take away a divorced Muslim womens rights under personal law or under
general law i.e. S. 125 etc. the court also ruled that orders passed by the magistrate under S. 125 are not nullified on coming into force of the Act. In Karim Abdul Rehman v. Shahnaz Karim 48 the second and third questions formulated by the Bombay HC related to the issue under our discussion, viz: (a) whether the Act has the effect of invalidating the orders passed under S. 125 i.e. whether the Act operates retrospectively so as to divest parties of their vested rights, and (b) whether after the commencement of the Act, a Muslim divorced wife can apply for maintenance under the provisions of CrPC? The Bombay HC ruled on question (a) that the provisions of statutes which touch a right in existence at the passing of the statute or not to be applied retrospectively in the absence of express enactment or necessary intendment. Therefore, the orders passed under S. 125 are not nullified; they are binding and the wife is not divested of her vested rights. As to question (b) the court held that in view of the provisions of Ss. 5 and 7 of the Act a divorced Muslim women cannot apply for maintenance by invoking the provisions of
43 44
AIR 1990 AP 225 Sakinabai v. Fakruddin, II (1999) DMC 576 45 Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 249 and Bibi Shahnaz v. State of Bihar, II (1999) DMC 85 46 Kaka v. Hassan Bano II (1998) DMC 85 47 AIR 1988 Guj 141 48 2000 (3) Mh L J 555
Page 24
Page 25
Page 26
HINDU MAINTENANCE
Under Hindu Law, the claim to maintenance is a legal right and a demand and refusal are not necessary for its creation. There is a legal obligation on part of the husband to make arrangements for his wifes due maintenance even if he goes abroad for business purposes. When a partition is effected, the Hindu law enjoins that the wife must get an equal share with his sons. Thus reinforcing the importance character of the right of maintenance which a Hindu wife or widow possesses under the Hindu Life.51 The wifes right to separate maintenance and residence was regulated by the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946. That Act has now been repealed by S. 29 of the Hindu Adoption and Maintenance Act 1956. Section 18 of the Act lays down that the wife, whether married before or after commencement of the act, is entitled to be maintained by her husband during her lifetime, unless she is unchaste or has ceased to be Hindu by conversion to another religion. There are two statues that provide for maintenance i.e. Hindu Marriage Act, 1955 (herein after referred to as HMA) and Hindu Adoptions and Maintenance Act, 1956. (Herein after referred to as HAMA) As per Hindu Adoptions And Maintenance Act, 1956 maintenance includes- in all cases, provision for food, clothing, residence, education and medical attendance and treatment (Sec 3(b)). Section 18(1) of the HAMA provides for maintenance of wife and states: Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
51
Page 27
52 53
Narbadabhai v Mahadev (1881) 5 Bom 99,103. Jayanti v. Alamelu (1904) 27 Mad 45, 38. 54 Chatru v the Crown AIR 1928 Lah 681 55 Secretary of State for India v Abalybhai Narayan 40 Bom LR 422 56 Ramabai v. Tribbak (1872) 9 Bom HC 283 57 Bammadevara v. Bammadevan (1928) 55 MLJ 242, Sidlingappa v. Sidava ILR (1878) 2 Bom 634; Mutyala v. Mutyala AIR 1958 AP 582 58 Parami v. Mahadevi ILR (1910) 34 Bom 278 59 Sita v Gopal AIR 1928 Pat 375; Shibli v Jodh ILR (1833) 14 Lah 750
Page 28
Maintenance of Wife in Hindu, Muslim And Secular Laws In India RIGHT TO SEPARATE RESIDENCE
Under Section 18 (2) of the HAMA, a Hindu wife is entitled to maintenance if she lives separate from her husband for a justifiable cause like: husbands desertion, cruelty, leprosy, another wife is living, concubine, conversion or any other justifiable cause. 60. The arrears of maintenance are recoverable. The court has power to pass interim orders of maintenance incidental or ancillary to main power. Under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. A wife under Hindu law is not entitled to a separate residence as her first duty is to her husband is to submit herself obediently to his authority, and to remain under his roof and protection61. Mere unkindness62 or quarrels63 or a second wife64 are insufficient grounds for a women to leave her marital grounds and seek a separate residence. However, if she proves that she has left the marital house due to his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she is compelled to live apart from him 65. Over the years, the courts have held that cruelties, keeping a concubine are justifiable reasons to leave the marital house. Cruelty may not be repetitive and only one act of violence is sufficient reason to lawfully leave the house.66 A wife, on leaving her marital house without justifiable reasons does not lose her right to maintenance, she can at any time return to her marital house and demand to be maintained b her husband. Her right is not forfeited but merely suspended as long as she commits a breach of duty by living apart from him67. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognized in Hindu law alone.
60 61
Sec 18(2) of HAMA Sitanath v Halmbutty 24 WR 337, 379. 62 (1875) 24 WR 377 63 Rajlukhy v. Bhootnath (1900) 4 CWN 488 64 Virasvami v Appasvami (1963) 1 Mad HC 375 65 Ajaib Kaur v. Uttam Singh AIR 1960 Punj 117 66 Ude Singh v Daulat Kaur AIR 1935 lah 386. 67 Surampalli v Surampalli (1908) 31 Mad 338
Page 29
68 69
Queen v Marimutta ILR (1882) 4 Mad 243 Mansa v. Jiwan ILR (1884) 6 All 617
Page 30
Maintenance of Wife in Hindu, Muslim And Secular Laws In India MAINTENANCE PENDENTE LITE
Sec 24 of HMA provides for maintenance pendente lite70and expenses for proceedings (for court proceedings). The object of section 24 of the act providing for maintenance pendente lite for a party in matrimonial proceedings is obviously to provide financial assistance to the indignant spouse to maintain herself/himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. This object of the provision is to be applied at the discretion of the court, having regard to the facts and circumstances of the case71 The legislature by enacting this provision appears to have taken note of the fact that during the pendency of the proceedings under the act, save for divorce or judicial separation, the unity of the family will be disrupted and one of the two spouses will be thrown out of the protection and shelter of the other and would be rendered without any means not only to maintain herself but also to meet the expenses necessary for the proceedings which she has to undergo. In order to alleviate such hardship, the legislature thought it fit to make a provision in the act for maintenance pendente lite and expenses of the proceedings from the spouse who has means to pay the same, if the other has no means.72 Once, a wife is divorced her remedy to seek maintenance is under Hindu Marriage Act, 1955 and she cannot have any recourse under the Hindu Adoption and Maintenance Act, 195673 In Bhanwar Lal v. Kamla Devi,74 Honourable Rajasthan High Court held that the object of Section 24 of the HMA is to provide means to a spouse who has no independent source of income to contest a matrimonial proceeding. Indignant spouses require to be allowed maintenance pendent lite and litigation expenses against the other spouse.
70
If the husband or the wife has no independent income sufficient for their support and the necessary expenses of the suit, the Court may on the application of either of them order the defendant to pay the plaintiff all the necessary expenses of the suit and such weekly or monthly income as considered reasonable by the Court. 71 Dudhiben. Merakhbhai v. Nathabhai Hazabhai 1998 (2) Civil LJ 443; Lalubhai Keshavram Joshi v.. Nirmala Bhen Laluram Joshi (1972) XIII GLR 626 72 Smt. Gangh Pundlik Waghmare v. Pundlik Maroti Waghmare AIR 1979 Bom 264 73 Paditrao Chimaji Kalure v. Gayabai AIR 2001 Bom 445 74 1986 HLR 235
Page 31
Lallubhai Keshavram v. Vlth Addl. Dist. And Sessions Judge AIR 1999 All 4 Mythili Raman v. K.T. Raman AIR 1976 Mad 260 77 Govindrao v. Antabai AIR 1951 BOM433 78 Prem Nath Sarvan v. Smt. Prem Lata Sarvan. AIR 1988 Del 50
Page 32
79
Vinod Kumar kajriwala v. Usha Vinod Kejriwala AIR 1993 Bom 160
Page 33
Maintenance of Wife in Hindu, Muslim And Secular Laws In India PERMANENT ALIMONY
The power to grant alimony contained in Section 25 of the HMA has to be exercised when the court is called upon to settle the mutual rights of the parties after the marital ties have snapped by determination or variation by the passing of the decree under section 10, 11 and 13 of the HMA act, read with sections 23, 26 and 27 of the HMA, a decree can be assumed to have been passed when an application for divorce or similar other relief is granted by surely not when the application is dismissed.80 Permanent alimony can only be granted only when there is a disruption of the marital status between the parties, such relief cannot be given when the main petition for divorce is dismissed or withdrawn. 81 The Supreme court in the case of Chand Dhawan v. Jawaharlal Dhawan82, in this case, the Supreme court held that: By courts intervention under the HMA, affecting or disruption the marital status has come about, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance. The death of the husband against whom an order for payment of alimony has been made does not mean that the widow is left without remedy. Relief is indeed available to her but not under HMA but the provisions of HAMA that come into play. A decree for permanent alimony is not extinguished by the death of the husband and the estate is liable to be proceeded against in the hands of the heirs for the satisfaction of the decree.83 The claim under section 25 of the act has to made on an application furnishing all details regarding his or her own income or other properties. Further an opportunity has to be given to the other side to put forth his or her defence. Hence, permanent alimony and maintenance under section 25 of the act, cannot be granted in the absence of the proper application.84 It is clear that where there was no disruption of marital status between parties as prayer for divorce under section 13 of the HMA was disallowed, there was no occasion for the court to pass an order
80 81
Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 All 150 Badri Prasad v. Urmilla Mahobiya 2001 (4) Civil LJ 360 82 1993 AIR SC 2548 83 Smt. Nandarani Mazmudar v. Indian Airlines AIR 1983 SC 1201 84 D. Balakrishnan v. Pavalamani AIR 2001 Mad 147
Page 34
85 86
Supra note 82 Vishnu B Mayekar v. Laxshmi V Mayekar 2000 (2) Civil LJ 926 87 Durega Das v. Smt. Tara rani AIR 1971 P&H 141 88 1995 (2) Civil LJ 204 89 Sushila v R. jagammadham AIR 1964 AP 247 90 Mrs. Veena Kalia v. Dr. Jatindar nath Kalia AIR 1996 Del. 54 91 Smt. Lalithamma v. R. Kannan AIR 1966 Mys. 178 92 Jagdish Prasad Tulsan v. Smt Manjula Tulsan AIR 1975 Cal. 64
Page 35
CONCLUSION
To conclude, I would like to state that as per my hypothesis, I have looked into the various provisions available to Hindu and Muslim wives for maintenance. Each case is certainly different and the muslim wife is closely linked to the provisions of the Criminal Procedure code for her right of maintenance. It is seen that over a period of time, the condition and availability of maintenance has greatly increased and the laws of maintenance have begun to bend to the needs of the women, who are unfortunately marginalized in our society. The reform in maintenance law has been more the work of the judiciary in case of interpretation of the Muslim Womans act, CrPC and the HMA and HAMA. The judiciary has played an important part in allowing Muslim woman maintenance after the iddat period and Hindu women access to courts under Section 24 of HMA and at all times keeping the provisions of CrPC separate and available to destitute women. The legislation has also in the recent past joined in with the judiciary of finally redressing the problems of wives by removing the ridiculous limit of Rs500/- per month on section 125 of the CrPC. It is my view and hopes that this trend continues in this direction and finally come to a point where the man and woman can stand at equal footing in all matters of family decisions and privileges.
Page 36
BIBLIOGRAPHY
Books Dr. Paras Diwan on Hindu Law, 2nd Edition, Orient Publishing Company, New Delhi, 2006 Family Law Lectures, Family Law I, Kusum, 2 nd Edition, Lexis Nexis Butterworths, New Delhi, 2003 Hindu Law, Gupte, Premier Publishing Company, Allahabad, 2005 Maynes Treatise on Hindu Law & Usage, 15 th Edition, Bharat Law House, New Delhi, 2006 Mulla, Principles of Hindu Law, Volume II, 19th Edition, Lexis Nexis Butterworths, New Delhi, 2006 Muslim Law of Mariage and Succession in India, S.A. Kader, Eastern Law House, Calcutta, 1998 Outlines of Muhammadan Law, Asaf A. A. Fyzee, 4th Edition, Oxford University Press, New Delhi, 2005 Syed Khalid Rashids Muslim Law, 4th Edition, Eastern Book Company, Lucknow, 2006 Statutes Referred Hindu Marriage Act, 1955 Hindu Maintenance and Adoptions Act, 1956
Page 37
Page 38