Maintenance Right of Muslim Wife: Perspective, Issues & Need for Reformation

Abstract

A Muslim divorced woman is placed separately and differently. Even the application of general law (Section 125 of Cr. P.C.) was subjected to the requirement of statuses & religion of a person (Muslim Divorced woman). When a deserted or destitute Muslim (divorced) wife who is unable to get maintenance by virtue of prohibition in Muslim Law, approaches & files application under Section 125 of Cr. P.C., the usual ploy adopted by the husband was to plead that he has already divorced his wife and hence he is not labile to pay maintenance. This argument became stronger after the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. Fortunately, the judiciary has shown awareness towards the pitiable position of Muslim woman and has in real sense empowered Muslim women, especially divorced woman whose miseries are uncountable. The decision given by the Supreme Court in Danial Latifi case settles the law in favour of the divorced Muslim wife and vests her with a “constitutional right” to livelihood through maintenance(the beginning of which was made by a path breaking judgment of Supreme in Shaha Bano Case). The present Act invites more criticism than praise. The content of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has left an opportunity to the judiciary to not only provide some relief to the deserted Muslim wives but also spur a countrywide debate on the need to look after them and not abandon them to destitution. It has expanded the horizons of the egalitarian motive of the Act. In fact, it becomes a need of the hour to do away with (maintenance) laws which are based on religion and which restrict the application of general laws with respect to the basic “livelihood” of the person as is guaranteed & envisaged under Article 21 of the Indian Constitution. So keeping in mind the guarantee of Livelihood State cannot enact or enforce those laws which takes away egalitarian “right to be maintained” by those who are under legal or/and moral obligation to maintain someone. State must try to enforce the mandate or requirement of a common civil code under Article 44 of the Indian Constitution at the least with respect to the some essential & basic aspects of personal laws.