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Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. This liability of the husband flows from the bond of matrimony. A wife is entitled to claim maintenance under the personal laws as well as under the provisions of the code of criminal procedure, 1973. right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto. (a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains children born to her before or after her divorce, a 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; (c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and (d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. Symbiosis law school, Noida. Page 1
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In a recent decision, the Supreme Court has revisited and rejuvenated the law of maintenance relating to divorced Muslim wives. The Supreme Court was considering the propriety of the decision given by the Family Court and confirmed by the High Court where maintenance was allowed to the divorced wife only upto the period of Iddat. The Husband sought to justify the decision of these courts arguing that in terms of the 'Muslim Women (Protection of Rights on Divorce) Act, 1986', the maintenance was to be restricted till the period of Iddat only. However from the side of the wife it was argued before the Supreme Court that the lower courts failed to take notice of the fact that in terms of Section 125 of the Code of Criminal Procedure the divorced wife was entitled to maintenance till the time she remarried and that Section 125 being a specific and beneficial legislation would prevail. In these circumstances, the Supreme Court called upon itself to decide as under. "The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum." The Court took note of the provisions of the 1986 Act, Code of Criminal Procedure and the Family Courts Act, 1984 to find favour with the arguments raised on behalf of the divorced wife. It observed, In our opinion, the point stands settled by judgment of this Court reported in Danial Latifi & Anr. Vs. Union of India4 pronounced by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder : A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves
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Conclusion
Symbiosis law school, Noida. Page 9
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