Introduction intention of expressing two different things or ideals

Introduction

      According to the
Mahomedan law, marriage is not a sacrament but a civil contract.  Although, all the rights and obligations it
creates arise immediately, the payment of dower by husband to a wife does not
dependent on any condition precedent.  The Rajasthan High Court has made a clear observation
in the instant case that unlike a Hindu Marriage, which is a sacrament,
according to the Islamic Law, a marriage i.e. Nikah is a permanent and an
unconditional civil contract made between two persons of opposite sexes with a
view to mutual enjoyment and procreation and legalizing of children.  The payment of dower (mehr) is one of the
essential features of valid marriage.

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After the period of iddat, the right to maintenance comes to be considered
under sec. 125 to 127 of Code of Criminal Procedure.  The division bench of Kerala High Court got
an opportunity to discuss the meaning of ‘reasonable and fair provision’ and
its distribution with maintenance.  The
court observed that the legislature has deliberately used the two expressions
‘provision’ and ‘maintenance’ with the intention of expressing two different
things or ideals departing from the view expressed by the Supreme Court in Shah
Bano case.  Parliament while enacting s.
3(1)(a) of the Act, accepted the traditional view that right to maintenance
ceases after the expiration of the iddat.

Facts
of the case (Mohammad Ahmed Khan vs. Shah Bano Begun & Ors)

    
 Shah Bano, a 62 year old Muslim women and
mother of five from Indore, Madhya Pradesh, was divorced by her husband
(petitioner) in 1978.  Where in life took
an ugly turn when her husband divorced her for dowry.  Shah Bano was sent back to her parent’s home,
who had no means to support herself and her children, unable to support herself
and her five children, she moved to the courts to be granted maintenance from
her ex-husband.

    
She filed a petition for maintenance under sec. 125 of the Cr.P.C,
according to which the former husband of the divorced woman has to maintain
her, if she is destitute and has no means of her own for her survival and he
has to maintain her until she remarries or she dies.  However, Shah Bano’s husband refused to pay
her maintenance beyond the period of iddah or iddat.

Maintenance
of wife

     If the husband divorces his wife or the
wife obtains a divorce from her husband , then she is entitled to claim
maintenance from her ex-husband, provided,  she is unable to maintain herself and the
husband has neglected to maintain her.  Her
right to claim maintenance would come to an end only if she remarries or lives
in adultery or if she voluntarily surrenders her right to maintenance.  Hence, the consideration of the previous
conduct of the divorced wife is wholly irrelevant in a under s.125 of the Cr.P.C.

  
  It was contended that the wife
had agreed to relinquish her right to maintenance allowance and therefore, she
was not entitled to claim maintenance allowance in view of the provisions
of  s.127 (3)(c), but no settlement of
claim which does not have special statutory right of the divorce under s.125
can operate to mitigate that claim.

    
 Where an order is made for the
maintenance of a wife under s.488 of Cr.P.C and the wife is afterwards
divorced, the order ceases to operate on the expiration of the period of
iddat.  The result is that a Mahomedan
may defeat an order made against him under s.488 by divorcing his wife
immediately after the order is made.  His
obligation to maintain his wife will cease in that case on the completion of
her iddat.  A divorced wife is entitled
to claim or sue for her dower, maintenance or return of her jewels and clothes.

      Section
125 of Cr.P.C
– order for maintenance of wives, children and parents, which applies to all
citizens regardless of cast or religion.

(1)
 If any person leaving sufficient means
neglects or refuses to maintain-

(a) 
his
wife, unable to maintain herself, or

(b)
his
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or

(c) 
his
legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or

(d)
his
father or mother, unable to maintain himself or herself.

Agreement
for future maintenance

      An ante-nuptial agreement between a Mahomedan
and his prospective wife, entered into with the object of securing the wife
against ill-treatment and of ensuring her suitable maintenance in the event of
ill-treatment, is not void as being against public policy.  Similarly, an agreement between a Mahomedan
and his first wife, made after his marriage with a second wife, providing for
certain maintenance for her if she could not in future get on with the second
wife, is not void on the ground of public policy.  Similarly, an agreement by a Mahomedan with
his second wife that he could allow her to live in her parent’s house and pay
her maintenance is not against public policy. 
It has been held in Bombay that an agreement for future separation
between husband and wife is void as being against public policy under the
Indian Contract Act, 1872, s.23.  An
agreement, therefore, which provides for certain maintenance to be given to the
wife in the event of a future separation between them, is also void.  If the marriage is dissolved by divorce, the
wife is entitled to maintenance for the period mentioned in s. 279 and not for
life, unless he agreement provides that it is for life.