Maintenance, or nafqa, comprises food, clothing and lodging. Two distinct bodies of law govern it, and keeping them apart is the whole discipline of this topic. Personal law determines who is obliged to maintain whom, and for how long. Territorial statute, in the form of the criminal maintenance provision, imposes an independent obligation aimed at preventing destitution, and applies irrespective of religion. Almost every reported controversy in this area, from Shah Bano to Mohd Abdul Samad, is about the relationship between the two.
Legal Framework
| Source | Provision | Effect |
|---|---|---|
| Personal law | Attracted by S.2 of the Muslim Personal Law (Shariat) Application Act 1937 | Determines the persons entitled and the extent of the obligation |
| Criminal statute | S.144 of the Bharatiya Nagarik Suraksha Sanhita 2023, formerly S.125 of the Code of Criminal Procedure 1973 | Order for maintenance of wives, children and parents unable to maintain themselves; secular and applies irrespective of personal law |
| Criminal statute | S.146(3)(b) BNSS, formerly S.127(3)(b) CrPC | Cancellation of an order where the woman has received the whole of the sum payable on divorce under customary or personal law |
| Special statute | Muslim Women (Protection of Rights on Divorce) Act 1986 | Provision and maintenance for a divorced Muslim woman; S.4 cascade to relatives and the State Wakf Board |
The maintenance provisions have been renumbered. S.125 CrPC is now S.144 BNSS, and S.127 CrPC is now S.146 BNSS. All the leading cases were decided under the old numbering, so the accurate practice is to give the BNSS number and note the CrPC provision under which the case was decided. Using the BNSS numbering shows currency; using it without noting the old provision makes the case citations look wrong.
Persons Entitled to Maintenance under Personal Law
| Claimant | Extent of the obligation |
|---|---|
| Wife | Absolute during the subsistence of the marriage, subject to her not being disobedient; not dependent on her poverty or on the husband's means in the same way as other claims |
| Children | The father must maintain his minor children who cannot maintain themselves, until majority or self support, and daughters until marriage. Sons who are adult and able bodied have no claim |
| Illegitimate children | Under classical law the father is not bound to maintain an illegitimate child; the mother is |
| Parents and grandparents | A person in easy circumstances must maintain indigent parents and grandparents |
| Other relations | Poor relations within the prohibited degrees may claim, in proportion to the shares in which they would inherit |
| Divorced wife | Under classical law, only during iddat. This is the limitation that generated the whole modern controversy |
Why the wife's claim is different in kind from the others: The other claims depend on the claimant's indigence and the obligor's means. The wife's claim during marriage does not: it arises from the marriage itself, as an incident of it, and is not conditional on her being poor. She may lose it by disobedience (nushu), for example by refusing to live with him without lawful cause, but note that a refusal supported by lawful cause, such as unpaid prompt dower under Abdul Kadir v Salima, or the husband's second marriage under Itwari v Asghari, is not disobedience at all.
The Classical Limitation and the Modern Response
Under classical law the husband's obligation to a divorced wife ends with iddat, roughly three months. Thereafter she must look to her own relations, and failing them to the community. That limitation is the source of every controversy in this topic, because in modern Indian conditions a woman divorced after decades of marriage, with no independent means, is destitute at the end of three months.
The response came in four stages, and the topic is best organised as that sequence.
Stage 1: The criminal provision applied irrespective of religion
Held: S.125 of the Code of Criminal Procedure applies to a divorced Muslim woman who is unable to maintain herself, and her entitlement is not confined to the iddat period. The provision is secular in character, being directed at the prevention of vagrancy and destitution, and it therefore applies irrespective of the personal law of the parties. Payment of mahr does not, of itself, discharge the obligation. The Court also urged the enactment of a uniform civil code under Art.44.
Relevance: The foundation of the modern law, and the decision whose political reception produced the 1986 Act. Note that the case is often cited under the wife's name, though the appellant was the husband.
Bai Tahira and Fuzlunbi: the mehr argument closed. Before Shah Bano the Krishna Iyer line had already dealt with the husband's principal statutory defence.
Held: S.125 is a measure of social justice, secular in character, and applies to a divorced Muslim wife. A consent decree or a payment of mahr does not automatically extinguish the right to maintenance. S.127(3)(b) operates to cancel a maintenance order only where the sum paid under customary or personal law is in substance adequate to serve the purpose of maintenance and prevent destitution.
Facts: The appellant had obtained a maintenance order which was then cancelled under S.127(3)(b) by three courts in succession, each holding that payment of mahr on divorce discharged the husband's liability. Krishna Iyer J described her as "talaqed into destitution" and criticised the courts below for defying Bai Tahira by "the disingenuous process of distinguishing the decision".
Held: Appeal allowed. Payment of mehr does not automatically attract S.127(3)(b). The provision applies only where the sum paid is a genuine sum adequate to serve the purpose of maintenance and to prevent destitution. A conventional or illusory mehr does not qualify. Bai Tahira was reaffirmed and was binding under Art.141.
Why the adequacy test was the decisive move in these two cases: S.127(3)(b) exists so that a man who has already made adequate provision on divorce is not made to pay twice. Read literally it would have allowed any customary payment, however nominal, to extinguish the order. Reading it purposively, so that the question is whether what was paid is enough to keep her from destitution, is what makes the provision workable alongside S.125 rather than destructive of it. Name the provision when citing these cases: the mechanism is S.127(3)(b) CrPC, now S.146(3)(b) BNSS, not S.125 itself.
Stage 2: The legislative reversal
The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted to neutralise Shah Bano. On the reading pressed against it, it confined a divorced Muslim woman's entitlement to the iddat period. It is treated fully in The Muslim Women (Protection of Rights on Divorce) Act, 1986.
Stage 3: The Act read down
Facts: A writ petition, filed by counsel who had appeared for Shah Bano, challenging the constitutional validity of the 1986 Act under Arts.14, 15 and 21, on the footing that it confined the divorced woman's entitlement to the iddat period.
Held: The Act was upheld but read down. The obligation under S.3(1)(a) is not confined to iddat. "Reasonable and fair provision" and "maintenance" are distinct: the husband must, within the iddat period, make and pay a reasonable and fair provision for his divorced wife extending beyond iddat, in addition to maintenance for the iddat period itself. Where she is unable to maintain herself after iddat and has not remarried, recourse lies against her relatives under S.4, and failing them against the State Wakf Board. So construed, the Act does not offend Arts.14, 15 or 21.
Relevance: The mechanism is the distinction between provision and maintenance, and between the time for performance and the extent of the obligation. Answers that say only that the Act was "read down to extend maintenance beyond iddat" miss it.
Stage 4: The remedies held cumulative
Facts: A Family Court in Telangana ordered the appellant to pay Rs 20,000 per month under S.125 CrPC. The Telangana High Court reduced the interim maintenance to Rs 10,000 but refused to set the order aside. He appealed, contending that his former wife, being a divorced Muslim woman, had to take recourse exclusively under the 1986 Act, which as a special law overrode S.125.
Held: Appeal dismissed. S.125 applies to all married and divorced women irrespective of their personal law, including Muslim women divorced by pronouncement of triple talaq. The 1986 Act is not a special law that overrides the general provision; the remedy it gives is in addition to and not in derogation of the criminal remedy, and a divorced Muslim woman may pursue both. Nagarathna J held that there can be no disparity in receiving maintenance on the basis of the law under which a woman is married or divorced, and that maintenance is not charity but a right of married women, applicable irrespective of religion.
Relevance: The current law, and the answer to any question on whether the 1986 Act is exclusive. The formula is cumulative, not alternative.
Why Mohd Abdul Samad had to be decided at all, given Danial Latifi: Danial Latifi upheld the Act and read it down, but did not squarely decide whether the Act excluded the criminal remedy, and the High Courts had divided on the point for decades. Mohd Abdul Samad answers it directly, on two grounds: the criminal provision is secular and does not depend on religion, and a special law displaces a general one only where the two cannot stand together, which here they can, the 1986 Act adding obligations without taking anything away.
Maintenance of Children
Facts: The appellant was allegedly turned out with three children aged six, three and one and a half, and the respondent refused to maintain them. The trial court awarded maintenance for her and for each child until majority. On the respondent's application relying on the 1986 Act, the High Court decided partly in his favour, restricting the children's maintenance to the two year period in S.3(1)(b).
Held: Appeal allowed. Under both personal law and S.125, a Muslim father with sufficient means is under an absolute obligation to maintain his minor children who cannot maintain themselves, until majority or self support, whichever is earlier, and daughters until marriage. That obligation is unaffected by the divorced wife's custody of them. S.3(1)(b) of the 1986 Act operates in a different field: the two year entitlement there is for the mother's own maintenance for nursing or caring for a child during the two years from the child's birth, and it does not touch the children's independent right.
Relevance: The examinable discrimination is whose right S.3(1)(b) confers. It is the mother's, not a cap on the children's maintenance. That is exactly the error the High Court made.
Effect of a Void or Unproved Talaq on the Claim
This is the point that ties Unit 2 together, and it is worth stating as a rule.
Where the talaq is void or unproved, the woman is still a wife. It follows that:
- She claims as a wife, not as a divorced woman, under S.144 BNSS;
- The 1986 Act does not apply at all, because that Act operates on divorce; and
- Her claim is not limited by anything in the 1986 Act.
Three situations produce this result. A talaq-e-biddat is void under Shayara Bano (2017) and S.3 of the 2019 Act. A talaq that is asserted but not proved fails under Shamim Ara (2002), which places the burden on the husband and holds that a plea in a written statement is not a pronouncement. A talaq that was never communicated takes effect not at all under Masroor Ahmed (2007).
Why this matters more than it appears: In practice the husband's assertion of an earlier talaq is the commonest defence to a maintenance claim. If the assertion fails, the claim is not merely stronger, it changes character: she is a wife, and the whole apparatus of the 1986 Act and the iddat limitation becomes irrelevant. Identifying that shift is often the highest scoring move in a problem question.
Maintenance of a Wife Who Obtains the Divorce Herself
Held: The expression "divorced wife" in Explanation (b) to S.125(1) covers a wife whose marriage has been dissolved on her own initiative, including by a decree under the Dissolution of Muslim Marriages Act 1939. She remains a "wife" for the purposes of the provision and is entitled to maintenance.
Relevance: Removes what would otherwise be a serious disincentive to using the 1939 Act. A wife does not forfeit her maintenance remedy by taking the initiative.
Effect of Conversion on Maintenance
The syllabus asks for this expressly, and the answer has two limbs.
Conversion by the husband. Conversion to another faith does not dissolve the marriage: Sarla Mudgal v Union of India (1995) and Lily Thomas v Union of India (2000). The wife therefore remains a wife, and her right to maintenance continues. If he converts to Islam and takes a second wife, the second marriage is void and he is liable for bigamy, and she additionally has a ground of divorce under her own personal law.
Conversion by the wife. Under classical Hanafi law apostasy by the wife dissolved the marriage, which would have ended her claim. S.4 of the Dissolution of Muslim Marriages Act 1939 removed that: her renunciation of Islam does not dissolve the marriage. She therefore remains a wife and retains her claim, and may in addition seek a decree on a S.2 ground.
The criminal provision is indifferent to religion in any event. Because S.144 BNSS is secular and applies irrespective of personal law, a change of religion by either party does not affect its operation. This is the cleanest way to answer the question: whatever the personal law consequences of conversion, the statutory remedy is unaffected.
Sunni and Shia Differences
The syllabus asks for these, and they are modest in this area.
| Matter | Sunni (Hanafi) | Shia (Ithna Ashari) |
|---|---|---|
| Wife's maintenance during marriage | Absolute incident of the marriage, subject to obedience | Same in substance |
| Maintenance of a divorced wife | Iddat only, under classical law | Iddat only, under classical law |
| Maintenance in a muta marriage | Not applicable, muta not recognised | The wife is not entitled to maintenance as a wife under classical law |
| Maintenance of poor relations | Owed to relations within the prohibited degrees, in proportion to their shares in inheritance | Confined more narrowly, chiefly to lineal ascendants and descendants |
| Maintenance of an illegitimate child | Father not bound; the mother is | Same in substance |
The important point about the school differences here: they are largely displaced in practice, because the operative provision in almost every Indian maintenance case is the secular criminal provision, which does not vary by school or by religion. Say so, rather than presenting the school differences as though they governed the outcome.
Illustrations
-
Mehr does not discharge the obligation. A husband who paid mahr of Rs 30,000 on divorce resists a maintenance order under S.146(3)(b) BNSS. Applying Bai Tahira and Fuzlunbi, the provision is attracted only if the sum is adequate to serve the purpose of maintenance and prevent destitution. A conventional sum does not qualify, and the order stands.
-
Provision extending beyond iddat. A divorced woman claims under the 1986 Act. Applying Danial Latifi, her former husband must have made and paid, within iddat, a reasonable and fair provision extending beyond iddat, in addition to maintenance for iddat itself. If he has not, the obligation is unperformed.
-
Both remedies together. The same woman also applies under S.144 BNSS. Applying Mohd Abdul Samad (2024), the 1986 Act does not oust the criminal remedy; the remedies are cumulative and she may pursue both.
-
Children's maintenance. A divorced mother claims for her three minor children. Applying Noor Saba Khatoon, the father's obligation runs to majority or self support, and for daughters to marriage, and the two year period in S.3(1)(b) of the 1986 Act is her own entitlement for nursing and care, not a cap on theirs.
-
Void talaq changes the character of the claim. A husband asserts a triple talaq pronounced by message. It is void under S.3 of the 2019 Act, so the woman is still a wife, claims as a wife under S.144 BNSS, and the 1986 Act does not arise at all.
-
Wife who obtained the decree herself. A wife obtains a decree under S.2(ii) of the 1939 Act for failure to maintain. Applying Zohara Khatoon, she remains a "divorced wife" within the Explanation and does not forfeit her maintenance remedy by having taken the initiative.
-
Conversion by the husband. A Muslim husband converts to Christianity. The marriage is not dissolved by the conversion, so his wife remains a wife and her claim continues; and the criminal provision applies irrespective of the religion of either party.
Recall Check
- Name the persons entitled to maintenance under Muslim personal law, and explain why the wife's claim during marriage differs in kind from the others.
- Set out the four stage sequence from Shah Bano to Mohd Abdul Samad, stating what each decided.
- Whose right does S.3(1)(b) of the 1986 Act confer, and what is the duration of the father's obligation to his children?
Key Cases
Mohd Ahmed Khan v Shah Bano Begum (1985) Shah Bano v Mohd Ahmed Khan 1985
Issue: Whether a divorced Muslim woman may claim maintenance under S.125 CrPC beyond the iddat period.
Rule: S.125 is a secular provision aimed at preventing vagrancy and applies irrespective of personal law; the entitlement is not confined to iddat, and payment of mahr does not of itself discharge the obligation.
Held: Maintenance upheld. The Court urged enactment of a uniform civil code under Art.44.
Bai Tahira v Ali Hussain Fissalli Chothia (1978) Bai Tahira v Ali Hussain 1979
Issue: Whether a settlement or payment of mahr at divorce extinguishes the S.125 right.
Rule: It does not automatically. S.127(3)(b) cancels an order only where the sum paid under customary or personal law is in substance adequate to serve the purpose of maintenance and prevent destitution.
Held: The maintenance order was restored. Three Judge Bench; decided 6 October 1978, reported 1979.
Fuzlunbi v K Khader Vali (1980) Fuzlunbi v K Khader Vali 1980
Issue: Whether payment of mehr automatically attracts S.127(3)(b).
Rule: No. The provision applies only where the sum paid is genuinely adequate to prevent destitution; a conventional or illusory mehr does not qualify.
Held: Appeal allowed; Bai Tahira reaffirmed and held binding under Art.141.
Danial Latifi v Union of India (2001) Danial Latifi v Union of India 2001
Issue: Whether the 1986 Act is unconstitutional, and whether the husband's obligation under S.3(1)(a) is confined to iddat.
Rule: Upheld but read down. Provision and maintenance are distinct: the husband must, within iddat, make and pay a reasonable and fair provision extending beyond iddat, in addition to maintenance for iddat. S.4 cascades to relatives and the State Wakf Board.
Held: The Act is constitutional so construed.
Mohd Abdul Samad v State of Telangana (2024) Mohd Abdul Samad v State of Telangana 2024
Issue: Whether a divorced Muslim woman is confined to the 1986 Act or may also apply under S.125 CrPC.
Rule: S.125 applies to all married and divorced women irrespective of personal law. The 1986 Act is in addition to and not in derogation of it; the remedies are cumulative.
Held: Appeal dismissed. Maintenance is not charity but a right.
Noor Saba Khatoon v Mohd Quasim (1997) Noor Saba Khatoon v Mohd Quasim 1997
Issue: Whether S.3(1)(b) of the 1986 Act restricts the father's liability to maintain his children to two years.
Rule: No. The father's obligation runs to majority or self support, and for daughters to marriage. S.3(1)(b) confers a right on the mother for nursing and care during two years from the child's birth.
Held: Appeal allowed; the children's independent right restored.
Mst Zohara Khatoon v Mohd Ibrahim (1981) Zohara Khatoon v Mohd Ibrahim 1981
Issue: Whether a woman who obtains a decree under the 1939 Act is a "divorced wife" for S.125.
Rule: She is; the Explanation covers a woman who has obtained a divorce from her husband, including on her own initiative.
Held: Entitled to maintenance.
Shamim Ara v State of Uttar Pradesh (2002) Shamim Ara v State of UP 2002
Issue: Whether a plea of previous divorce in a written statement amounts to a pronouncement of talaq.
Rule: A talaq must be pronounced and proved by the husband; a pleading is not a pronouncement.
Held: The marriage did not stand dissolved and the liability to maintain continued. Relevant here because an unproved talaq leaves the woman claiming as a wife.
Distinctions
| Basis | Personal law maintenance | S.144 BNSS maintenance |
|---|---|---|
| Source | Classical Shariah, attracted by S.2 of the 1937 Act | Territorial criminal statute |
| Applies to | Muslims | All persons irrespective of religion |
| Object | Fulfilment of a personal law obligation | Prevention of vagrancy and destitution |
| Duration after divorce | Iddat only, under classical law | Until she remarries or is able to maintain herself |
| Displaced by personal law | Not applicable | No: Shah Bano, Mohd Abdul Samad |
| Basis | "Provision" under S.3(1)(a) | "Maintenance" under S.3(1)(a) |
|---|---|---|
| Looks | Forward, to her future | To the iddat period |
| Time for performance | Within iddat | Within iddat |
| Extent | Extends beyond iddat | Confined to iddat |
| Authority | Danial Latifi (2001) | Danial Latifi (2001) |
| Basis | S.3(1)(b) of the 1986 Act | The children's own right |
|---|---|---|
| Whose right | The mother's | The children's |
| Purpose | Compensation for nursing or caring for a child | Their maintenance |
| Duration | Two years from the child's birth | Until majority or self support, and daughters until marriage |
| Authority | Noor Saba Khatoon (1997) | Noor Saba Khatoon (1997), personal law and S.144 BNSS |
| Basis | Claim as a wife | Claim as a divorced woman |
|---|---|---|
| When available | Marriage subsisting, including where the talaq is void or unproved | Divorce validly effected |
| Provision relied on | S.144 BNSS | S.144 BNSS, and the 1986 Act |
| 1986 Act applicable | No, it operates only on divorce | Yes |
| Iddat limitation relevant | No | Yes, subject to Danial Latifi |
Flashcards
What does maintenance or nafqa comprise?
Food, clothing and lodging.
Name the persons entitled to maintenance under Muslim personal law.
The wife, minor children, indigent parents and grandparents, and poor relations within the prohibited degrees in proportion to their shares in inheritance.
How does the wife's claim during marriage differ from the other claims?
It arises from the marriage itself as an incident of it, and is not conditional on her indigence, though it may be lost by disobedience without lawful cause.
Under classical law, for how long must a husband maintain a divorced wife?
Only during the iddat period.
What is the current numbering of the criminal maintenance provisions?
S.125 CrPC is now S.144 BNSS, and S.127 CrPC is now S.146 BNSS.
What did *Shah Bano* decide?
That S.125 CrPC is secular, applies irrespective of personal law, and entitles a divorced Muslim woman unable to maintain herself to maintenance beyond the iddat period.
What is the adequacy test under S.127(3)(b), and which cases established it?
The provision cancels a maintenance order only where the sum paid under customary or personal law is in substance adequate to serve the purpose of maintenance and prevent destitution. Bai Tahira (1978) and Fuzlunbi (1980).
What is the *Danial Latifi* distinction?
Between "reasonable and fair provision", which must be made and paid within iddat but must extend beyond it, and "maintenance", which covers the iddat period.
What is the S.4 cascade under the 1986 Act?
Where the divorced woman cannot maintain herself after iddat and has not remarried, liability falls on relatives who would inherit her property in proportion to their shares, and failing them on the State Wakf Board.
What did *Mohd Abdul Samad* (2024) decide?
That S.125 CrPC applies to all married and divorced women irrespective of personal law, and that the 1986 Act is in addition to and not in derogation of it, so the remedies are cumulative.
For how long must a Muslim father maintain his children?
Until they attain majority or are able to maintain themselves, whichever is earlier, and in the case of daughters until they marry: Noor Saba Khatoon.
Whose right is conferred by S.3(1)(b) of the 1986 Act?
The mother's, for nursing or caring for a child during two years from the child's birth. It is not a cap on the children's maintenance.
Where a talaq is void or unproved, on what footing does the woman claim?
As a wife, under S.144 BNSS. The 1986 Act does not apply, since it operates only on divorce.
Does a wife who obtains a decree under the 1939 Act forfeit her maintenance remedy?
No. Zohara Khatoon v Mohd Ibrahim (1981) held she remains a "divorced wife" within the Explanation to S.125(1).
What is the effect of the wife's conversion on her maintenance?
S.4 of the 1939 Act provides that her renunciation of Islam does not dissolve the marriage, so she remains a wife and retains her claim; and the criminal provision applies irrespective of religion in any event.
Exam Scenario
Problem: Nasir married Firoza in 2005. In 2020 he sent her a message reading "talaq talaq talaq" and stopped maintaining her and their two children, a daughter then aged fourteen and a son aged nineteen who is in employment. At the time of the marriage a dower of Rs 50,000 was fixed, of which Rs 50,000 was paid in full in 2005. In 2022 Firoza applied for maintenance for herself and both children. Nasir contends that the marriage ended in 2020, that his obligation ended with iddat, that payment of the dower in full discharges him, that the 1986 Act is the only available remedy, and that in any event he owes nothing for the children. Advise Firoza and deal with each of Nasir's contentions.
Step 1: Settle the status of the marriage
The message of 2020 is a pronouncement of talaq-e-biddat in electronic form. It is void and illegal under S.3 of the Muslim Women (Protection of Rights on Marriage) Act 2019, which expressly covers electronic form, and the practice was set aside in Shayara Bano (2017).
Two independent objections. Under Masroor Ahmed communication is an element of pronouncement, and here it was communicated, so that objection does not assist Firoza. Under Shamim Ara the burden of proving reasonable cause and a prior attempt at reconciliation by two arbiters lies on Nasir, and nothing in the facts suggests either.
The marriage subsists and Firoza is still a wife. That changes the character of her claim, and is the pivot of the whole answer.
Step 2: Take Nasir's five contentions in turn
| Contention | Answer |
|---|---|
| The marriage ended in 2020 | Rejected: the talaq is void under S.3 of the 2019 Act, so she remains a wife |
| His obligation ended with iddat | Fails at the threshold: iddat limits a divorced wife's claim, and she is not divorced |
| Payment of the dower discharges him | No: S.146(3)(b) BNSS is not engaged, and the sum is inadequate in any event |
| The 1986 Act is the only remedy | No: the Act requires a divorce, and it is cumulative with the criminal remedy anyway |
| He owes nothing for the children | Right as to the adult son, wrong as to the minor daughter |
He is additionally exposed to prosecution under S.4 of the 2019 Act, up to three years and fine, the offence being cognizable on information from Firoza or a relation by blood or marriage under S.7(a).
Step 3: Develop the three statutory answers
Iddat. The limitation applies to a divorced wife, so it does not arise at all. Firoza claims as a wife under S.144 BNSS, formerly S.125 CrPC. Even if she were divorced, Shah Bano (1985) held the entitlement not confined to iddat, and Danial Latifi (2001) held that the "provision" under S.3(1)(a) of the 1986 Act must extend beyond iddat.
Dower. The mechanism Nasir invokes is S.146(3)(b) BNSS, formerly S.127(3)(b) CrPC, which applies only where the woman has received the whole of the sum payable on divorce under customary or personal law. There has been no divorce, so it is not engaged.
Even assuming a divorce, Bai Tahira (1978) and Fuzlunbi (1980) require the sum to be adequate to serve the purpose of maintenance and prevent destitution. Rs 50,000, fixed in 2005 and paid then, against a marriage of fifteen years, is a conventional sum and is not adequate. Fuzlunbi is directly in point, Krishna Iyer J having described the appellant there as "talaqed into destitution".
Exclusivity. The 1986 Act operates on divorce, of which there has been none, so it does not apply to Firoza at all.
Even if she were divorced, Mohd Abdul Samad v State of Telangana (2024) settled that S.125 applies to all married and divorced women irrespective of personal law, and that the Act is in addition to and not in derogation of the criminal remedy: the remedies are cumulative, not alternative. Nagarathna J held that maintenance is not charity but a right.
Step 4: Distinguish the two children
| Child | Position |
|---|---|
| Daughter, fourteen in 2020 and so a minor | The father's obligation is absolute under both personal law and S.144 BNSS, running until majority or self support, whichever is earlier, and for a daughter until she marries: Noor Saba Khatoon (1997). It is unaffected by Firoza's custody of her |
| Son, nineteen and in employment | An adult son able to maintain himself has no claim, so Nasir's contention succeeds as to him |
Anticipate the argument from S.3(1)(b) of the 1986 Act. That provision confers a right on the mother for nursing or caring for a child during two years from the child's birth, and is not a cap on the children's maintenance. That was precisely the High Court's error corrected in Noor Saba Khatoon.
Step 5: Advise on remedies
- Claim as a wife under S.144 BNSS for herself and for the minor daughter, and not under the 1986 Act, which does not apply.
- Seek a subsistence allowance under S.5 and custody of the minor daughter under S.6 of the 2019 Act.
- Set the criminal law in motion under S.4 of the 2019 Act, the offence being compoundable at her instance under S.7(b) if she prefers not to press it.
- Make no claim for the adult son.
- If she wishes to end the marriage herself, sue under the Dissolution of Muslim Marriages Act 1939 on S.2(ii), failure to maintain for two years, satisfied since 2020. By S.5 of that Act a decree leaves her dower rights intact, and by Zohara Khatoon she does not forfeit her maintenance remedy by taking the initiative.
The 1986 Act does not apply at all. The talaq being void, there has been no divorce, and the Act operates only on divorce. Saying so expressly is worth a mark, being the consequence of Step 1.
Name the provision on the dower point. The mechanism is S.127(3)(b) CrPC, now S.146(3)(b) BNSS. Answers that discuss Bai Tahira and Fuzlunbi without identifying it lose precision.
The two children are differently placed. The facts are constructed to test this, and identifying it is the mark of a careful answer.
Conclusion. Firoza is still a wife, so she claims for herself and the minor daughter under S.144 BNSS; the iddat limitation and the 1986 Act do not arise, and the dower does not discharge Nasir.
Nasir has no answer on the daughter but succeeds as to the adult son. Firoza has in addition the 2019 Act remedies, and a ground of divorce under S.2(ii) of the 1939 Act should she wish to end the marriage herself.
See Also
- The Muslim Women (Protection of Rights on Divorce) Act, 1986 : the Act treated section by section, with Danial Latifi and the S.4 cascade.
- Modes of Talaq : why a void or unproved talaq leaves the woman claiming as a wife.
- The Dissolution of Muslim Marriages Act, 1939 : judicial dissolution, and S.5 preserving the dower.
- Dower (Mahr) : dower as a debt, and why a conventional mehr does not discharge the maintenance obligation.
- Operation and Application of Muslim Law : the personal and territorial division on which this topic rests.