The Muslim Women (Protection of Rights on Divorce) Act 1986

The Muslim Women (Protection of Rights on Divorce) Act was a controversially named landmark legislation passed by the parliament of India in 1986 to allegedly protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. The Act was passed by the Rajiv Gandhi government to nullify the decision in Shah Bano case.[1][2] This case caused the Rajiv Gandhi government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.

The law applies to the whole of India except Jammu and Kashmir. It is administered by any magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973. As per the Act, a divorced Muslim woman is entitled to reasonable and fair provision and maintenance from her former husband and this should be paid within the period of iddah.

According to the Statement of Objects and Reasons of this Act, when a Muslim divorced woman is unable to support herself after the iddah period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddah only.[3][4]

Personal laws

High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15.

The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband".[5] The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddah period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.[6] In Shabana Bano v Imran Khan, the Supreme Court held that a Muslim divorced woman who has no means to maintain herself is entitled to get maintenance from her former husband even after the period of iddah and she can claim the same under S.125 CrPC.[7]

Divorced women are entitled to maintenance not only for iddat period from their former husband but also to reasonable and fair provisions for future maintenance. S.3 of the Muslim Women (Protection of Rights on Divorce) Act has to be given under the liberal interpretation to help divorced women. K. Zunaideen v. Ameena Begum (1998) 1 ctc 566[8]

Notes

The Act is declaratory & retrospective in its operation. Even if wife is divorced prior to the commencement of the act Husband is liable to provide reasonable & fair provision & maintenance to her. Hyder khan v. mehrunnisa(1993)1 APLJ 82 DNC (KER)[9]

  1. ↑ http://www.thehindu.com/2000/08/07/stories/05072524.htm
  2. ↑ http://archive.indianexpress.com/news/from-shah-bano-to-salma/520890/
  3. ↑ On violence: a reader 2007, p. 262-265.
  4. ↑ The politics of autonomy : Indian experiences 2005, p. 60-63.
  5. ↑ "Arif Mohammad Khan on Shah Bano case: 'Najma Heptullah was key influence on Rajiv Gandhi'".
  6. ↑ Danial Lathifi Vs Union of India. supreme court judgment. 2001.
  7. ↑ "Shabana Bano Vs Imran Khan". supreme court. Retrieved 28 January 2014.
  8. ↑ Muslim Women (Prot. of Rights on Div.) Act, 1986 with Rules - (Bare Act) (2015 ed.). EBC. pp. 3–3.
  9. ↑ "Muslim Women Protection of Rights on Divorce Act 1986" (2015). Eastern Book Company: 1-10.

References

  • Lawrence, edited by Bruce B.; Karim, Aisha (2007). On violence: a reader. Durham [NC]: Duke University Press. ISBN 0822390167. 
  • Aftab, Tahera (2008). Inscribing South Asian Muslim women : an annotated bibliography & research guide ([Online-Ausg.] ed.). Leiden: Brill. ISBN 9004158499. 
  • Samaddar, ed. by Ranabir (2005). The politics of autonomy : Indian experiences (1. publ. ed.). New Delhi: Sage. ISBN 0761934537. 
  • Noorani, A. G. (2001). The RSS and the BJP : a division of labour (Repr., with updated epilogue. ed.). New Delhi: Left Word. ISBN 8187496134. 
  • Jindal, T.P. (1995). Ayodhya imbroglio. New Delhi: Ashish Pub. House. ISBN 8170246792. 
  • Noorani, Abdul Gafoor Abdul Majeed (2003). The Muslims of India : a documentary record. New Delhi [u.a.]: Oxford Univ. Press. ISBN 0195661583. 
  • Walsh, Judith E. (2006). A brief history of India. New York: Facts on File. ISBN 1438108257. 
  • Benhabib, Seyla (2002). The claims of culture equality and diversity in the global era. Princeton, NJ: Princeton Univ. Press. ISBN 0691048630. 
  • Makarand R Paranjape (2009). Altered Destinations: Self, Society, and Nation in India. Anthem Press. ISBN 978-1-84331-797-5. 

Further reading

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