Muslim women right to maintenance u/s 125

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others has held that if the divorced woman is able to maintain herself, the husband's liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife. The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the judgement given in the decision of Shahbano case.

Option to be Governed by Code of Criminal Procedure

If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

COMPARATIVE CHART-BROAD OUTLINE
 

Muslim Women(Protection of Rights on Divorce) Act 1986 Section 125 Code of Criminal Procedure
Jurisdiction Application is filed in the area where divorced woman resides Application where the husband is, or resides or where he last resided with his wife
Relief available Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays. Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period.
Punishment on failure to pay Imprisonment which may extend to one year. Imprisonment which may extend to one month.
Applies to Only to divorced woman To every married or divorced woman.
Alteration /allowance No such Provision. On change of circumstances Alteration maybe made.
Maintenance after Iddat Woman to be maintained by her children or parents or relatives or the Warf board. No such provision.
 
A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with Muslim law.-
 
Iddat period means in the case of a divorced woman-
  1. three menstrual courses after the date of divorce, if she is subject to menstruation; and
  2. three lunar months after her divorce, if she is not subject to menstruation; and
  3. if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.

PROVISIONS OF THE ACT:

 A senior citizen includes parents who are unable to maintain themselves through their own earnings or out of their own property, may apply for maintenance from their adult children or any legal heir (who is in possession of or is likely to inherit their property) of the childless senior citizen. This maintenance includes the provision of proper food, shelter, clothing and medical treatment.

 Parents include biological, adoptive and step mothers and fathers, whether senior citizens or not.
 

Rights

A Muslim woman at the time of divorce is entitled to the following
  1. A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
  2. Where she herself maintains the children born to her before or after her divorce, reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
  3. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
  4. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
  5. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
  6. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE

The proceedings under the provision of the Act may be taken against any children or relative in any district:-

a.      where the senior citizen or parent resides or last resided;

b.      where children or relative resides.

 

APPLICATION FOR MAINTENANCE

 

Ø       Application for maintenance may be made by Senior Citizens themselves or they may authorize a person or voluntary organization to do so. The Tribunal may also take action suo moto.

 

Ø       Tribunals on receiving the application may hold an enquiry or order the children/ relatives to pay an interim monthly allowance for the maintenance of their Parents or Senior Citizen.

 

Ø       If the Tribunal is satisfied that children or relatives have neglected or refused to take care of their parents or Senior Citizen, it shall order them to provide a monthly maintenance amount, up to a maximum of Rs.10,000 per month.

 

Ø       A maintenance order made under this Act have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and is executed in the manner prescribed for the execution of such order by that Code.

 

Ø       If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month’s allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier.

 

Ø       No legal practitioner is required or permitted for this process

Application

Where
  1. A reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or
  2. The properties referred to above have not been delivered to a divorced woman on her divorce,
She or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
 
Where an application has been made by a divorced woman and the Magistrate is satisfied that-
  1. her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children;or
  2. the amount equal to the sum of mahr or dower has not been paid; or
  3. that the properties have not been delivered to her, 
He may make an order, within one month of the date of the filing of the application, directing her former husband to:
  1. Pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be
  2. Make an order for the payment of such mahr or dower or
  3. The delivery of such properties as referred to above to the divorced woman

DEPOSIT OF THE MAINTENANCE AMOUNT

o       When a maintenance order is made under this Act, the children or relative who is required to pay must deposit the entire amount in such manner as the Tribunal, within thirty days of the date of announcing the order by the Tribunal.

o       Where any Tribunal makes an order for maintenance under this Act, such Tribunal may also direct that in addition to the amount of maintenance, simple interest to be paid at such rate and from such date not earlier than the date of making the application, which can not be less than five per cent, and not more than eighteen per cent.

 

APPEALS

 

Ø      Any senior citizen or a parent, who gets aggrieved by the order of the Tribunal can prefer an appeal at the Appellate Tribunal within sixty days from the date of the order.

 

Ø      The Appellate Tribunal after examining the appeal and the records called for may either allow or reject the appeal.

 

Ø      The Appellate Tribunal adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal is the final.

 

No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

Failure to pay

If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
  1. Issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure and
  2. May sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

REVOCATION OF WILL

As per the provision of the Act, a senior citizen can seek to revoke any property, which has been transferred in favour of children/relative on the condition that such children/relative would provide maintenance to him but are not providing the same. The tribunals are empowered to declare such transfers as void on the applications of such parent.

 

OFFENCES AND PROCEDURE FOR TRIAL

 

Ø      Exposure and abandonment of senior citizen :

Erring persons are punishable with imprisonment up to three months or a fine of up to rupees five thousand or with both.

 

Ø      Cognizance of offences :

(1) Notwithstanding anything contained in the Code of Criminal Procedure,

     1973, (2 of 1974) every offence under this Act shall be cognizable and   

      bailable.

(2) An offence under this Act shall be tried summarily by a Magistrate.

 

PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN

 

The Act provides that the State Government shall ensure : -

·        the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible;

·        separate queues be arranged for senior citizens;

·        facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;

·        research activities for chronic elderly diseases and ageing is expanded;

·        there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

 

Ongoing transition in the families today as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It sholud also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them.

Failure to Maintain Herself After Iddat Period

Where the Magistrate is satisfied that
  1. A divorced woman has not re-married and
  2. Is not able to maintain herself after the iddat period,

He may make an order directing such of her relatives who would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

WHERE THERE ARE CHILDREN

Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: 

WHERE PARENTS ARE UNABLE TO PAY

If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. 

WHERE DIVORCED WOMAN HAS NO RELATIVES

Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,
  1. To pay such maintenance as determined by him or,
  2. As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.

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