Maintenance of a Divorced Muslim Woman — Muslim Law (Family Law II) Notes

Maintenance of a Divorced Muslim Woman

In 1985, a 62-year-old woman named Shah Bano won the right to maintenance from her former husband under the ordinary criminal law (s.125 CrPC). The judgment triggered a national storm; Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 in response — and the Supreme Court then read that very Act to preserve her protection. This single saga is the most important topic in the paper.

What maintenance can a divorced Muslim woman claim?

Trace the law in four moves — that structure is what scores.

A. The classical rule. Under traditional Muslim law, a husband’s duty to maintain his divorced wife lasts only for the period of iddat. After iddat, he owed her nothing further (she had her deferred dower and could return to her own family).

B. Shah Bano (1985). In Mohd. Ahmed Khan v Shah Bano Begum, the Supreme Court held that a divorced Muslim woman who cannot maintain herself is a “wife” within section 125 of the Criminal Procedure Code, 1973 and can claim maintenance under it beyond iddat, because s.125 is a secular, welfare provision that overrides personal law.

C. The 1986 Act. Amid protest, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. Its key section:

Section 3 — a divorced woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; plus her mahr and the return of her properties. Where she maintains children born to her, she is entitled to maintenance for two years from their birth.
Section 4 — after iddat, if she cannot maintain herself, the Magistrate may order her relatives (who would inherit from her), or failing them the State Wakf Board, to maintain her.

D. Danial Latifi (2001). In Danial Latifi v Union of India, the Supreme Court upheld the 1986 Act but interpreted section 3 to mean that the “reasonable and fair provision” a husband must make within iddat is a provision for the wife’s whole future — not merely maintenance limited to the iddat days. So the Act, read down, gives the woman a lump-sum future provision, and its constitutionality was saved.

E. The s.125 option survives. Later cases (Khatoon Nisa, Shabana Bano v Imran Khan (2010)) confirm that a divorced Muslim woman may still seek maintenance under s.125 CrPC; the 1986 Act does not take away that remedy.

Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986: “a divorced woman shall be entitled to — (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) …maintenance for a period of two years from the… dates of birth of [her] children; (c) an amount equal to the sum of mahr or dower…; (d) all the properties given to her…”

In Simple Terms: Classically a husband owed maintenance only during iddat. Shah Bano (1985) let a divorced Muslim woman claim under s.125 CrPC beyond iddat. Parliament passed the 1986 Act; Danial Latifi (2001) then read the Act to require the husband to make, within iddat, a fair provision for her whole future — a lump sum, not just iddat-days money. And she can still choose s.125 CrPC.

🧩 WORKED EXAMPLE — the divorced wife who needs support

Facts. H divorces W. She has no means and now needs maintenance. Advise her.

Rule. Under s.3 MWPRDA 1986 (as read in Danial Latifi), the husband must make a reasonable and fair provision for her future within iddat, plus mahr and her properties; she may also claim under s.125 CrPC; and under s.4, failing the husband, her heirs or the Wakf Board may be ordered to maintain her.

Apply. W can demand a fair future provision + mahr from H within iddat; if inadequate or unpaid, she may move under s.125 CrPC; if H cannot pay and she is still destitute after iddat, s.4 routes to relatives/Wakf Board.

Conclusion. W is not limited to iddat-days maintenance — she is entitled to a fair provision for her future and retains the s.125 CrPC option.

flowchart TD
    ROOT["Divorced Muslim woman — maintenance"]:::root
    ROOT --> A["Classical: only during iddat"]:::leaf
    ROOT --> B["Shah Bano 1985: s.125 CrPC beyond iddat"]:::leaf
    ROOT --> C["MWPRDA 1986 s.3: fair provision within iddat + mahr"]:::leaf
    ROOT --> D["Danial Latifi 2001: s.3 = provision for whole future"]:::leaf
    ROOT --> E["s.4: relatives / State Wakf Board"]:::leaf
    ROOT --> F["s.125 CrPC option survives (Shabana Bano)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Mohd. Ahmed Khan v Shah Bano Begum (1985) — a divorced Muslim woman is a “wife” under s.125 CrPC and may claim maintenance beyond iddat.
Danial Latifi v Union of India (2001) — MWPRDA 1986 upheld; s.3 requires a fair provision for the wife’s whole future, made within iddat.
Shabana Bano v Imran Khan (2010) — a divorced Muslim woman may still claim maintenance under s.125 CrPC.

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